Professional Documents
Culture Documents
DE LEUROPE
COUNCIL
OF EUROPE
JUDGMENT
STRASBOURG
19 February 2009
PROCEDURE
1. The case originated in an application (no. 3455/05) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (the Convention) by eleven non-United Kingdom
nationals (the applicants), on 21 January 2005. The President acceded to
the applicants request not to have their names disclosed (Rule 47 3 of the
Rules of Court).
2. The applicants were represented by Birnberg Peirce and Partners, a
firm of solicitors practising in London. The United Kingdom Government
(the Government) were represented by their Agent, Mr D. Walton,
Foreign and Commonwealth Office.
3. The applicants alleged, in particular, that they had been unlawfully
detained, in breach of Articles 3, 5 1 and 14 of the Convention and that
they had not had adequate remedies at their disposal, in breach of Articles 5
4 and 13 of the Convention.
Agent,
Counsel,
Advisers;
Solicitors,
Counsel.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The facts of the case, as submitted by the parties, may be summarised
as follows.
A. The derogation
9. On 11 September 2001 four commercial aeroplanes were hijacked
over the United States of America. Two of them were flown directly at the
Twin Towers of the World Trade Centre and a third at the Pentagon,
causing great loss of life and destruction to property. The Islamist extremist
terrorist organisation al-Qaeda, led by Osama Bin Laden, claimed
responsibility. The United Kingdom joined with the United States of
America in military action in Afghanistan, which had been used as a base
for al-Qaeda training camps.
10. The Government contended that the events of 11 September 2001
demonstrated that international terrorists, notably those associated with alQaeda, had the intention and capacity to mount attacks against civilian
targets on an unprecedented scale. Further, given the loose-knit, global
structure of al-Qaeda and its affiliates and their fanaticism, ruthlessness and
determination, it would be difficult for the State to prevent future attacks. In
the Governments assessment, the United Kingdom, because of its close
links with the United States of America, was a particular target. They
considered that there was an emergency of a most serious kind threatening
the life of the nation. Moreover, they considered that the threat came
principally, but not exclusively, from a number of foreign nationals present
in the United Kingdom, who were providing a support network for Islamist
terrorist operations linked to al-Qaeda. A number of these foreign nationals
could not be deported because of the risk that they would suffer treatment
contrary to Article 3 of the Convention in their countries of origin.
11. On 11 November 2001 the Secretary of State made a derogation
order under section 14 of the Human Rights Act 1998 (the 1998 Act see
paragraph 94 below) in which he set out the terms of a proposed notification
to the Secretary General of the Council of Europe of a derogation pursuant
to Article 15 of the Convention. On 18 December 2001 the Government
lodged the derogation with the Secretary General of the Council of Europe.
The derogation notice provided as follows:
The Government has powers under the Immigration Act 1971 (the 1971 Act) to
remove or deport persons on the ground that their presence in the United Kingdom is
not conducive to the public good on national security grounds. Persons can also be
arrested and detained under Schedules 2 and 3 to the 1971 Act pending their removal
or deportation. The courts in the United Kingdom have ruled that this power of
detention can only be exercised during the period necessary, in all the circumstances
of the particular case, to effect removal and that, if it becomes clear that removal is
not going to be possible within a reasonable time, detention will be unlawful (R. v.
Governor of Durham Prison, ex parte Singh [1984] All ER 983).
Article 5 1 (f) of the Convention
It is well established that Article 5 1 (f) permits the detention of a person with a
view to deportation only in circumstances where action is being taken with a view to
deportation (Chahal v. the United Kingdom (1996) 23 EHRR 413 at paragraph 112).
In that case the European Court of Human Rights indicated that detention will cease to
be permissible under Article 5 1 (f) if deportation proceedings are not prosecuted
with due diligence and that it was necessary in such cases to determine whether the
duration of the deportation proceedings was excessive (paragraph 113).
In some cases, where the intention remains to remove or deport a person on national
security grounds, continued detention may not be consistent with Article 5 1 (f) as
interpreted by the Court in the Chahal case. This may be the case, for example, if the
person has established that removal to their own country might result in treatment
contrary to Article 3 of the Convention. In such circumstances, irrespective of the
gravity of the threat to national security posed by the person concerned, it is well
established that Article 3 prevents removal or deportation to a place where there is a
real risk that the person will suffer treatment contrary to that Article. If no alternative
destination is immediately available then removal or deportation may not, for the time
being, be possible even though the ultimate intention remains to remove or deport the
person once satisfactory arrangements can be made. In addition, it may not be
possible to prosecute the person for a criminal offence given the strict rules on the
admissibility of evidence in the criminal justice system of the United Kingdom and
the high standard of proof required.
Derogation under Article 15 of the Convention
The Government has considered whether the exercise of the extended power to
detain contained in the Anti-terrorism, Crime and Security Act 2001 may be
inconsistent with the obligations under Article 5 1 of the Convention. As indicated
above, there may be cases where, notwithstanding a continuing intention to remove or
deport a person who is being detained, it is not possible to say that action is being
taken with a view to deportation within the meaning of Article 5 1 (f) as interpreted
by the Court in the Chahal case. To the extent, therefore, that the exercise of the
extended power may be inconsistent with the United Kingdoms obligations under
Article 5 1, the Government has decided to avail itself of the right of derogation
conferred by Article 15 1 of the Convention and will continue to do so until further
notice.
The derogation notice then set out the provisions of Part 4 of the Antiterrorism, Crime and Security Bill 2001.
12. On 12 November 2001 the Anti-terrorism, Crime and Security Bill,
containing the clauses which were to eventually become Part 4 of the Antiterrorism, Crime and Security Act 2001 (the 2001 Act see paragraph 90
below), was introduced into the House of Commons. The Bill was passed
by Parliament in two weeks, with three days of debate on the floor of the
House of Commons set aside for its 125 clauses in a restrictive
programming motion, prompting both the Joint Committee of Human
Rights and the Home Affairs Select Committee to complain of the speed
with which they were being asked to consider the matter.
13. The 2001 Act came into force on 4 December 2001. During the
lifetime of the legislation, sixteen individuals, including the present eleven
applicants, were certified under section 21 and detained. The first six
applicants were certified on 17 December 2001 and taken into detention
shortly thereafter. The seventh applicant was certified and detained in early
February 2002; the ninth applicant on 22 April 2002; the eighth applicant on
23 October 2002; the tenth applicant on 14 January 2003; and the eleventh
applicant was certified on 2 October 2003 and kept in detention, having
previously been held under other legislation.
B. The derogation proceedings
14. In proceedings before the Special Immigration Appeals Commission
(SIAC see paragraphs 91-93 below), the first seven applicants challenged
the legality of the derogation, claiming that their detention under the 2001
Act was in breach of their rights under Articles 3, 5, 6 and 14 of the
Convention. Each, in addition, challenged the Secretary of States decision
to certify him as an international terrorist.
15. On 30 July 2002, having examined both open and closed material
and heard submissions from special advocates in addition to counsel for the
parties and for the third party, Liberty, SIAC delivered its ruling on the
legality of the derogation. It held that, on the basis of the open material, it
was satisfied that the threat from al-Qaeda had created a public emergency
threatening the life of the nation, within the meaning of Article 15 of the
Convention, and that the closed material confirmed this view.
SIAC further held that the fact that the objective of protecting the public
from international terrorists could possibly have been achieved by
alternative methods did not demonstrate that the measures actually adopted
were not strictly necessary. Moreover, since the purpose of the detention
was the protection of the United Kingdom, the fact that the detainee was at
liberty to leave demonstrated that the measures were properly tailored to the
state of emergency.
SIAC rejected the applicants complaints under Article 3 of the
Convention. It held that, in so far as they related to conditions of detention,
the applicants should bring proceedings in the ordinary civil courts, and that
SIAC had no jurisdiction to determine such a complaint as it was not a
derogation issue. It further saw no merit in the applicants argument that
detention for an indefinite period was contrary to Article 3. On this point,
SIAC held that the detention was not indefinite, since it was governed by
the time-limits of the 2001 Act itself and since the 2001 Act provided that
each applicants certification was subject to automatic review by SIAC
every six months. In any event, the mere fact that no term had yet been
fixed for preventive detention did not give rise to a breach of Article 3.
SIAC did not accept that Article 6 of the Convention applied to the
certification process. The certification of each applicant as a suspected
international terrorist was not a charge but instead a statement of
suspicion and the proceedings before SIAC were not for the determination
of a criminal charge. Furthermore, there was no relevant civil right at issue
and Article 6 did not apply in its civil limb either.
SIAC did, however, rule that the derogation was unlawful because the
relevant provisions of the 2001 Act unjustifiably discriminated against
foreign nationals, in breach of Article 14 of the Convention. The powers of
the 2001 Act could properly be confined to non-nationals only if the threat
stemmed exclusively, or almost exclusively, from non-nationals and the
evidence did not support that conclusion. In paragraphs 94-95 of its
judgment, SIAC held:
94. If there is to be an effective derogation from the right to liberty enshrined in
Article 5 in respect of suspected international terrorists and we can see powerful
arguments in favour of such a derogation the derogation ought rationally to extend
to all irremovable suspected international terrorists. It would properly be confined to
the alien section of the population only if, as [counsel for the appellants] contends, the
threat stems exclusively or almost exclusively from that alien section.
95. But the evidence before us demonstrates beyond argument that the threat is not
so confined. There are many British nationals already identified mostly in detention
abroad who fall within the definition of suspected international terrorists, and it
was clear from the submissions made to us that in the opinion of the [Secretary of
State] there are others at liberty in the United Kingdom who could be similarly
defined. In those circumstances we fail to see how the derogation can be regarded as
other than discriminatory on the grounds of national origin.
their safety, and the purpose which the Secretary of State wished to achieve,
which was to remove non-nationals who posed a threat to national security.
Moreover, the applicants would be detained for no longer than was
necessary before they could be deported or until the emergency was
resolved or they ceased to be a threat to the countrys safety. There was no
discrimination contrary to Article 14 of the Convention, because British
nationals suspected of being terrorists were not in an analogous situation to
similarly suspected foreign nationals who could not be deported because of
fears for their safety. Such foreign nationals did not have a right to remain
in the country but only a right, for the time being, not to be removed for
their own safety. The Court of Appeal added that it was well established in
international law that, in some situations, States could distinguish between
nationals and non-nationals, especially in times of emergency. It further
concluded that Parliament had been entitled to limit the measures proposed
so as to affect only foreign nationals suspected of terrorist links because it
was entitled to reach the conclusion that detention of only the limited class
of foreign nationals with which the measures were concerned was, in the
circumstances, strictly required within the meaning of Article 15 of the
Convention.
The Court of Appeal agreed with SIAC that the proceedings to appeal
against certification were not criminal within the meaning of Article 6 1
of the Convention. It found, however, that the civil limb of Article 6 applied
but that the proceedings were as fair as could reasonably be achieved. It
further held that the applicants had not demonstrated that their detention
amounted to a breach of Article 3 of the Convention.
17. The applicants were granted leave to appeal to the House of Lords,
which delivered its judgment on 16 December 2004 ([2004] UKHL 56).
A majority of the Law Lords, expressly or impliedly, found that the
applicants detention under Part 4 of the 2001 Act did not fall within the
exception to the general right of liberty set out in Article 5 1 (f) of the
Convention (see Lord Bingham, at paragraphs 8-9; Lord Hoffman, at
paragraph 97; Lord Hope, at paragraphs 103-05; Lord Scott, at paragraph
155; Lord Rodger, at paragraph 163; Baroness Hale, at paragraph 222).
Lord Bingham summarised the position in this way:
9. ... A person who commits a serious crime under the criminal law of this country
may of course, whether a national or a non-national, be charged, tried and, if
convicted, imprisoned. But a non-national who faces the prospect of torture or
inhuman treatment if returned to his own country, and who cannot be deported to any
third country, and is not charged with any crime, may not under Article 5 1 (f) of the
Convention and Schedule 3 to the Immigration Act 1971 be detained here even if
judged to be a threat to national security.
18. The House of Lords further held, by eight to one (Lords Bingham
and Scott with considerable hesitation), that SIACs conclusion that there
was a public emergency threatening the life of the nation should not be
displaced. Lord Hope assessed the evidence as follows:
118. There is ample evidence within [the open] material to show that the
government were fully justified in taking the view in November 2001 that there was
an emergency threatening the life of the nation. ... [The] United Kingdom was at
danger of attacks from the al-Qaeda network which had the capacity through its
associates to inflict massive casualties and have a devastating effect on the
functioning of the nation. This had been demonstrated by the events of 11 September
2001 in New York, Pennsylvania and Washington. There was a significant body of
foreign nationals in the United Kingdom who had the will and the capability of
mounting coordinated attacks here which would be just as destructive to human life
and to property. There was ample intelligence to show that international terrorist
organisations involved in recent attacks and in preparation for other attacks of
terrorism had links with the United Kingdom, and that they and others posed a
continuing threat to this country. There was a growing body of evidence showing
preparations made for the use of weapons of mass destruction in this campaign. ... [It]
was considered [by the Home Office] that the serious threats to the nation emanated
predominantly, albeit not exclusively, and more immediately from the category of
foreign nationals.
119. The picture which emerges clearly from these statements is of a current state
of emergency. It is an emergency which is constituted by the threat that these attacks
will be carried out. It threatens the life of the nation because of the appalling
consequences that would affect us all if they were to occur here. But it cannot yet be
said that these attacks are imminent. On 15 October 2001 the Secretary of State said in
the House of Commons that there was no immediate intelligence pointing to a specific
threat to the United Kingdom: see Hansard (HC Debates, col 925). On 5 March 2002
this assessment of the position was repeated in the governments response to the
Second Report of the House of Commons Select Committee on Defence on the Threat
from Terrorism (HC 348, para 13) where it was stated that it would be wrong to say
that there was evidence of a particular threat. I would not conclude from the material
which we have seen that there was no current emergency. But I would conclude that
the emergency which the threats constitute is of a different kind, or on a different
level, from that which would undoubtedly ensue if the threats were ever to
materialise. The evidence indicates that the latter emergency cannot yet be said to be
imminent. It has to be recognised that, as the attacks are likely to come without
warning, it may not be possible to identify a stage when they can be said to be
imminent. This is an important factor, and I do not leave it out of account. But the fact
is that the stage when the nation has to face that kind of emergency, the emergency of
imminent attack, has not been reached.
Lord Hoffman, who dissented, accepted that there was credible evidence
of a threat of serious terrorist attack within the United Kingdom, but
considered that it would not destroy the life of the nation, since the threat
was not so fundamental as to threaten our institutions of government or our
existence as a civil community. He concluded that the real threat to the
life of the nation ... comes not from terrorism but from laws such as these.
19. The other Law Lords (Lords Bingham, Nicholls, Hope, Scott,
Rodger, Carswell and Baroness Hale, with Lord Walker dissenting) rejected
the Governments submission that it was for Parliament and the executive,
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rather than the courts, to judge the response necessary to protect the security
of the public. Lord Bingham expressed his view as follows:
42. It follows from this analysis that the appellants are in my opinion entitled to
invite the courts to review, on proportionality grounds, the derogation order and the
compatibility with the Convention of section 23 [of the 2001 Act] and the courts are
not effectively precluded by any doctrine of deference from scrutinising the issues
raised. It also follows that I do not accept the full breadth of the Attorney-Generals
submissions. I do not in particular accept the distinction which he drew between
democratic institutions and the courts. It is of course true that the judges in this
country are not elected and are not answerable to Parliament. It is also of course true
... that Parliament, the executive and the courts have different functions. But the
function of independent judges charged to interpret and apply the law is universally
recognised as a cardinal feature of the modern democratic State, a cornerstone of the
rule of law itself. The Attorney-General is fully entitled to insist on the proper limits
of judicial authority, but he is wrong to stigmatise judicial decision-making as in some
way undemocratic. It is particularly inappropriate in a case such as the present in
which Parliament has expressly legislated in section 6 of the 1998 Act to render
unlawful any act of a public authority, including a court, incompatible with a
Convention right; has required courts (in section 2) to take account of relevant
Strasbourg jurisprudence; has (in section 3) required courts, so far as possible, to give
effect to Convention rights and has conferred a right of appeal on derogation issues.
The effect is not, of course, to override the sovereign legislative authority of the
Queen in Parliament, since if primary legislation is declared to be incompatible the
validity of the legislation is unaffected (section 4(6)) and the remedy lies with the
appropriate minister (section 10), who is answerable to Parliament. The 1998 Act
gives the courts a very specific, wholly democratic, mandate.
20. The majority therefore examined whether the detention regime under
Part 4 of the 2001 Act was a proportionate response to the emergency
situation, and concluded that it did not rationally address the threat to
security and was a disproportionate response to that threat. They relied on
three principal grounds: firstly, that the detention scheme applied only to
non-nationals suspected of international terrorism and did not address the
threat which came from United Kingdom nationals who were also so
suspected; secondly, that it left suspected international terrorists at liberty to
leave the United Kingdom and continue their threatening activities abroad;
thirdly, that the legislation was drafted too broadly, so that it could, in
principle, apply to individuals suspected of involvement with international
terrorist organisations which did not fall within the scope of the derogation.
On the first point, Lord Bingham emphasised that SIACs finding that
the terrorist threat was not confined to non-nationals had not been
challenged. Since SIAC was the responsible fact-finding tribunal, it was
unnecessary to examine the basis for its finding, but there was evidence that
upwards of a thousand individuals from the UK are estimated on the basis
of intelligence to have attended training camps in Afghanistan in the last
five years; that some British citizens were said to have planned to return
from Afghanistan to the United Kingdom; and that the background material
relating to the applicants showed the high level of involvement of British
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citizens and those otherwise connected with the United Kingdom in the
terrorist networks. Lord Bingham continued:
33. ... It is plain that sections 21 and 23 of the 2001 Act do not address the threat
presented by UK nationals since they do not provide for the certification and detention
of UK nationals. It is beside the point that other sections of the 2001 Act and the 2000
Act do apply to UK nationals, since they are not the subject of derogation, are not the
subject of complaint and apply equally to foreign nationals. Yet the threat from UK
nationals, if quantitatively smaller, is not said to be qualitatively different from that
from foreign nationals. It is also plain that sections 21 and 23 do permit a person
certified and detained to leave the United Kingdom and go to any other country
willing to receive him, as two of the appellants did when they left for Morocco and
France respectively ... Such freedom to leave is wholly explicable in terms of
immigration control: if the British authorities wish to deport a foreign national but
cannot deport him to country A because of Chahal their purpose is as well served by
his voluntary departure for country B. But allowing a suspected international
terrorist to leave our shores and depart to another country, perhaps a country as close
as France, there to pursue his criminal designs, is hard to reconcile with a belief in his
capacity to inflict serious injury to the people and interests of this country. ...
...
35. The fifth step in the appellants argument permits of little elaboration. But it
seems reasonable to assume that those suspected international terrorists who are UK
nationals are not simply ignored by the authorities. When [the fifth applicant] was
released from prison by SIAC on bail ... it was on condition (among other things) that
he wear an electronic monitoring tag at all times; that he remain at his premises at all
times; that he telephone a named security company five times each day at specified
times; that he permit the company to install monitoring equipment at his premises;
that he limit entry to his premises to his family, his solicitor, his medical attendants
and other approved persons; that he make no contact with any other person; that he
have on his premises no computer equipment, mobile telephone or other electronic
communications device; that he cancel the existing telephone link to his premises; and
that he install a dedicated telephone link permitting contact only with the security
company. The appellants suggested that conditions of this kind, strictly enforced,
would effectively inhibit terrorist activity. It is hard to see why this would not be so.
36. In urging the fundamental importance of the right to personal freedom, as the
sixth step in their proportionality argument, the appellants were able to draw on the
long libertarian tradition of English law, dating back to Chapter 39 of Magna
Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the
Petition of Right 1628, upheld in a series of landmark decisions down the centuries
and embodied in the substance and procedure of the law to our own day. ... In its
treatment of Article 5 of the European Convention, the European Court also has
recognised the prime importance of personal freedom. ...
...
43. The appellants proportionality challenge to the order and section 23 is, in my
opinion, sound, for all the reasons they gave and also for those given by the European
Commissioner for Human Rights and the Newton Committee. The Attorney-General
could give no persuasive answer.
21. In addition, the majority held that the 2001 Act was discriminatory
and inconsistent with Article 14 of the Convention, from which there had
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particular piece of evidence was a matter for consideration in the light of all
the evidence viewed as a whole. Information which might have been
obtained by torture should not automatically be excluded, but the court
should have regard to any evidence about the manner in which it was
obtained and judge its weight and reliability accordingly.
SIAC held that the detention provisions in the 2001 Act should be
interpreted in the light of the terms of the derogation. The threat to the life
of the nation was not confined to activities within the United Kingdom,
because the nations life included its diplomatic, cultural and tourismrelated activities abroad. Moreover, attacks on the United Kingdoms allies
could also create a risk to the United Kingdom, given the interdependence
of countries facing a global terrorist threat. The derogation identified the
threat as emanating from al-Qaeda and its associates. It was therefore
necessary, in respect of both the national security and the international
terrorist limbs of section 21 of the 2001 Act, to show reasonable grounds
for suspicion that the person certified was part of a group which was
connected, directly or indirectly, to al-Qaeda. Even if the main focus of the
group in question was a national struggle, if it backed al-Qaeda for a part of
its agenda and the individual nonetheless supported the group, it was a
legitimate inference that he was supporting and assisting al-Qaeda.
SIAC also made a number of findings of fact of general application
concerning organisations alleged by the Secretary of State to be linked to
al-Qaeda. These findings were based on both open and closed material.
Thus, it held, for example, that the Salafist Group for Call and Combat
(GSPC), which was formed in Algeria in 1998, was an international terrorist
organisation linked to al-Qaeda through training and funding, but that the
earlier Algerian organisation, Armed Islamic Group (GIA), was not. The
Egyptian Islamic Jihad (EIJ) was either part of al-Qaeda or very closely
linked to it. The Chechen Arab Mujahaddin was an international terrorist
group, pursuing an anti-West agenda beyond the struggle for Chechen
independence, with close links to al-Qaeda. SIAC also identified as falling
within the terms of the derogation a group of primarily Algerian extremists
centred around Abu Doha, an Algerian who had lived in the United
Kingdom from about 1999. It was alleged that Abu Doha had held a senior
role in training camps in Afghanistan and had many contacts in al-Qaeda,
including a connection with the Frankfurt cell which had been accused of
plotting to bomb the Strasbourg Christmas Market in December 2000. Abu
Doha was arrested in February 2001, following an extradition request from
the United States of America, but his group remained active.
27. The applicants appealed against SIACs ruling that evidence which
might have been obtained by torture was admissible. For the purposes of the
appeal, the parties agreed that the proceedings before SIAC to challenge
certification fell within Article 5 4 of the Convention and as such had to
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satisfy the basic requirements of a fair trial. It was not, therefore, necessary
to decide whether Article 6 also applied and the issue was left open.
On 11 August 2004 the Court of Appeal, by a majority, upheld SIACs
decision ([2004] EWCA Civ 1123).
On 8 December 2005 the House of Lords held unanimously that the
evidence of a suspect or witness which had been obtained by torture had
long been regarded as inherently unreliable, unfair, offensive to ordinary
standards of humanity and decency and incompatible with the principles on
which courts should administer justice. It followed that such evidence might
not lawfully be admitted against a party to proceedings in a United
Kingdom court, irrespective of where, by whom and on whose authority the
torture had been inflicted. Since the person challenging certification had
only limited access to the material advanced against him in the proceedings
before SIAC, he could not be expected to do more than raise a plausible
reason that material might have been so obtained and it was then for SIAC
to initiate the relevant enquiries. The House of Lords therefore allowed the
applicants appeals and remitted each case to SIAC for reconsideration
([2005] UKHL 71).
28. SIACs conclusions as regards each applicants case are set out in
paragraphs 29-69 below. Of the sixteen individuals, including the eleven
applicants, detained under Part 4 of the 2001 Act, one had his certificate
cancelled by SIAC.
D. The certification proceedings: the individual determinations
1. The first applicant
29. The first applicant was born in a Palestinian refugee camp in Jordan,
is stateless, and was granted indefinite leave to remain in the United
Kingdom in 1997. On 17 December 2001 the first applicant was certified by
the Secretary of State as a suspected international terrorist under section 21
of the 2001 Act. On 18 December 2001 a deportation order was made on the
same grounds.
30. The first applicant was taken into detention on 19 December 2001.
He subsequently appealed to SIAC against certification and the decision to
make a deportation order. On 24 July 2002 he was transferred to Broadmoor
Secure Mental Hospital.
31. The first applicant and his representatives were served with the
Secretary of States open material, including a police report which
showed that large sums of money had moved through the four bank
accounts in his name. SIAC and the special advocate instructed on behalf of
the first applicant were in addition presented with closed evidence.
Assisted by an interpreter, the first applicant gave oral evidence to SIAC
and called one witness to testify to his good character. He also filed four
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counsels] concerns that he had a most difficult task. We were not impressed with the
Appellant as a witness, even making all allowances for his mental state and the
difficulties under which he was labouring. He was often evasive and vague and has
admittedly told lies in relation to his movements in the 1990s. His explanations about
some of the transactions recorded in his bank accounts we have found difficult to
follow or accept. We should say that we do not consider that the Respondents case is
significantly advanced by what has been said about the Appellants involvement with
Algeria or Chechnya; the case depends essentially on the evidence about the
Appellants dealings with Afghanistan and with terrorists known to have links with alQaeda.
It is clear that the Appellant was a very successful fund-raiser and, more
importantly, that he was able to get the money to Afghanistan. Whatever his
problems, he was able to and was relied on to provide an efficient service. His
explanations both of who were the well known terrorists whose children were at the
school and of the various of the more substantial payments shown in the bank
accounts are unsatisfactory. He was vague where, having regard to the allegations
made against him, we would have expected some detail.
...
We have considered all the evidence critically. The closed material confirms our
view that the certification in this case was correct. There is both a reasonable belief
that the Appellants presence in the United Kingdom is a risk to national security and
a reasonable suspicion that he is a terrorist within the meaning of section 21 of the
2001 Act. This appeal is accordingly dismissed.
32. In accordance with the terms of the 2001 Act, the first applicants
case was reviewed by SIAC six months later. In its judgment of 2 July
2004, SIAC found that:
The updated open generic material ... continues to show that there is a direct
terrorist threat to the United Kingdom from a group or groups of largely North
African Islamic extremists, linked in various ways to al-Qaeda.
Although some of his contacts have been detained, the range of extremists
prominent in various groups was such that he would have no difficulty and retains the
will and ability to add his considerable experience of logistic support to them in
pursuit of the extremist Islamic agenda in the UK. The certificate is properly
maintained.
33. SIAC reviewed the case again on 15 December 2004 and again
found that the certificate should be maintained.
2. The second applicant
34. The second applicant is a citizen of Morocco born on 28 February
1963. He entered the United Kingdom as a visitor in 1985 and was granted
leave to remain as a student. On 21 June 1988 he was granted indefinite
leave to remain on the basis of his marriage to a British citizen, which
subsequently broke down. In 1990 and again in 1997 he applied for
naturalisation, but no decision was made on those applications. In 2000 he
remarried another British citizen, with whom he has a child.
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agenda. ... [He] has done so as a close associate of Abu Doha. Given the information
we have about Abu Doha which, as we have said, we have no reason to doubt, we
regard [the second applicants] claim that Abu Doha was doing nothing illegal (save
that he was hiding his activities from the Russians) as entirely implausible. ... [He] has
had associations with a number of other individuals involved in terrorism. They are
for the most part specified by name in the open case but are not mentioned in his own
statement. ...
These are the five features which meet in [the second applicant]. No doubt the
Secretary of State could have made his case by demonstrating various combinations of
them in a single person. With all five, we regard the case as compelling. We are
entirely satisfied that the Secretary of State is reasonable in his suspicion that [the
second applicant] supports or assists the GIA, the GSPC, and the looser group based
around Abu Doha, and in his belief that at any time [the second applicant] is in the
United Kingdom his presence here is a risk to national security.
19
...
We are satisfied that the Appellant is a member of the TFG, itself an international
terrorist organisation within the scope of the 2001 Act, and that he has links with an
international terrorist group. We appreciate that our open reasons for being so
satisfied are sparse. That is because the material which drives us to that conclusion is
mainly closed. We have considered it carefully and in the context of knowing the
Appellant denies any involvement in terrorism or any knowing support for or
assistance to terrorists. We have therefore been careful only to rely on material which
cannot in our judgment have an innocent explanation.
39. SIAC reached similar conclusions in its periodic reviews of the case
on 2 July and on 15 December 2004.
4. The fourth applicant
40. The fourth applicant was born in Algeria in 1971 and first entered
the United Kingdom in 1994. In May 1997 he was arrested and charged
with a number of offences, including a conspiracy to export to Algeria
material which it was alleged was to be used for the purposes of terrorism. It
was alleged that he was a member of GIA. The case against the applicant
was abandoned in March 2000 when a key witness, a Security Service
agent, who was to give evidence concerning the need for civilians to defend
themselves against atrocities allegedly committed by the Algerian
government, decided that it was too dangerous for him to give evidence.
41. In 1998 the fourth applicant married a French national. He became a
French citizen in May 2001, although he did not inform the United
Kingdom authorities of this. The Secretary of State certified him under
section 21 of the 2001 Act on 17 December 2001 and he was detained on
19 December 2001. On 13 March 2002 he left for France, where he was
interviewed on arrival by security officials and then set at liberty. Since he
had left the United Kingdom, the certificate against him was revoked and
the revocation was backdated to 22 March 2002.
42. In its judgment of 29 October 2003, SIAC held that the backdating
of the revocation meant that the fourth applicant could not be regarded as
having been certified at the time he lodged his appeal and that, therefore, he
had no right of appeal. It nonetheless decided to consider the appeal on the
basis that this conclusion might be wrong. Since the Secretary of State could
not reasonably have known at the time the certificate was issued that the
applicant was a French citizen and could safely be removed to France, it
could not be said on that ground that the certificate should not have been
issued. SIAC therefore continued by assessing the evidence against him:
In reaching our decision, we will have to consider not only the open but also the
closed material. The Appellant appears to have suspected that he was the subject of
surveillance over much of the relevant period.
We are conscious of the need to be very careful not to assume guilt from
association. There must be more than friendship or consorting with those who are
20
21
Appellants have been at a disadvantage in that they have not been able to deal with
what might be taken to be incriminating evidence. The Special Advocates have been
able to challenge certain matters and sometimes to good effect. That indeed was the
case in relation to a camp in Dorset attended by a number of those, including the
Appellant, of interest to the Security Service. ...
The case against the Appellant is that he was a member of the GIA and, since its
split from the GIA, of the GSPC. He is associated with a number of leading
extremists, some of whom are also members of or associated with the GSPC, and has
provided active support in the form of the supply of false documents and facilitating
young Muslims from the United Kingdom to travel to Afghanistan to train for jihad.
He is regarded as having undertaken an important role in the support activities
undertaken on behalf of the GSPC and other Islamic extremists in the United
Kingdom and outside it. All this the Appellant denies and in his statement he gives
innocent explanations for the associations alleged against him. He was indeed friendly
with in particular other Algerians in the United Kingdom and, so far as [the fourth
applicant] was concerned, the families were close because, apart from anything else,
their respective wives were French. He attended [the eighth applicants] mosque. He
was an impressive preacher and the Appellant says he listened but was never
involved. Indeed he did not know [the eighth applicant] except through Chechen
relief, which the Appellant and many hundreds of other Muslims supported, and he
had never spoken to him on the telephone. He had on occasions approached [the
eighth applicant] at Friday prayers at the mosque if he wanted guidance on some
social problem.
45. On 22 April 2004, because of concerns about his health, the fifth
applicant was released from prison on bail on strict conditions, which
22
46. On 15 December 2004, SIAC again reviewed the case and decided
that the certificate should be maintained.
6. The sixth applicant
47. The sixth applicant was born in Algeria in 1967 and was resident in
the United Kingdom from 1989. The Secretary of State issued a certificate
against him on 17 December 2001 and he was taken into detention on
19 December 2001.
48. In its judgment of 29 October 2003, SIAC observed as follows:
Although we have to make our decision on the basis both of the open and of the
closed material, it is important to indicate the case against [the sixth applicant] as it
has been set out by the Secretary of State in open material, because that is the case
that [the sixth applicant] knows that he has to meet. In assessing his statement and the
other evidence and arguments submitted on his behalf, we remind ourselves always
that he is not aware of the Secretary of States closed material, but nevertheless that he
is not operating entirely in a vacuum because of the open allegations; and we may test
the Appellants own case by the way he deals with those allegations.
The Secretary of States case against [the sixth applicant] is summarised as follows:
(1) he belongs to and/or is a member of the GSPC, and previously was involved
with the GIA;
(2) he has supported and assisted the GSPC (and previously the GIA) through his
involvement in credit card fraud which is a main source of income in the United
Kingdom for the GSPC;
(3) from about August 2000, [the sixth applicant] took on an important role in
procuring telecommunications equipment for the GSPC and the provision of logistical
support for satellite phones by way of purchase and allocation of airtimes for those
phones;
(4) he has also played an important part in procuring telecommunications
equipment and other equipment for the Mujahaddin fighting in Chechnya that is to
say the faction which until 2002 was under the command of Ibn Khattab.
23
SIAC then reviewed the open evidence before it regarding the purchase
by Abu Doha, assisted by the sixth and seventh applicants, of a number of
satellite telephones and other telecommunications equipment to the value of
229,265 pounds sterling and the nature and extent of the connection
between the sixth and seventh applicants. It concluded:
In the circumstances we have set out, it appears to us that the Secretary of State has
ample ground for suspicion that [the sixth applicants] procurement activities were
directed to the support of the extremist Arab Islamist faction fighting in Chechnya.
That support arises from [the sixth applicants] connections with and support of the
GSPC. We emphasise, as is the case with other appeals as well, that it is the
accumulation of factors, each lending support to the others rather than undermining
other points, providing colour and context for the activities seen as a whole which is
persuasive; it would be wrong to take a piece in isolation, thereby to diminish its
significance and to miss the larger picture. The generic judgment supports these
conclusions. These are activities falling centrally within the derogation. [The sixth
applicant] has provided only implausible denials and has failed to offer credible
alternative explanations. That is sufficient to determine his appeal, without making
any further reference to the Secretary of States other allegations which, as was
acknowledged in the open statement and in open evidence before [SIAC], can be
properly sustained only by examination of the closed material.
49. SIAC reviewed the case on 2 July 2004 and on 28 February 2005
and, on each occasion, decided that there were still grounds for maintaining
the certificate.
7. The seventh applicant
50. The seventh applicant was born in Algeria in 1971 and apparently
entered the United Kingdom using false French identity papers in or before
1994. On 7 December 2001 he was convicted of a number of driving
offences and sentenced to four months imprisonment. He was certified by
the Secretary of State on 5 February 2002 and taken into detention pursuant
to the certificate as soon as his prison sentence ended on 9 February 2002.
51. In its judgment of 29 October 2003, SIAC noted that the allegations
against the seventh applicant were that he had been a member of GSPC
since 1997 or 1998, and before that a member of GIA; that his contacts with
leading GSPC members in the United Kingdom showed that he was a
trusted member of the organisation; and that he had been involved with Abu
Doha and the sixth applicant in purchasing telecommunications equipment
for use by extremists in Chechnya and Algeria. It further noted that:
[The seventh applicant] did not give evidence before [SIAC] and, indeed, chose not
to attend the hearing of his appeal. His statement, which we have of course read, is in
the most general terms, and, perhaps not surprisingly, [his counsels] submissions,
both oral and written, were similarly general. [The seventh applicants] approach to
the present proceedings of themselves and the fact that he did not give oral evidence
or make any detailed written statement are not matters to be put in the scale against
him. We well understand the difficulty that Appellants have in circumstances where
the allegations against them are only summarised and where much of the evidence on
24
which those allegations are based cannot, for reasons of national security, be
communicated to the Appellants themselves. However, [the seventh applicant] is in
the best position to know what his activities and motives have been in the relevant
period. Nothing prevents him from giving a full description and account of those
activities if he wishes to do so. The fact that he has chosen to provide no detailed
account of his activities means that he has provided no material to counter the
evidence and arguments of others.
SIAC concluded that the open and closed material supported the
allegations against the seventh applicant and it dismissed his appeal.
52. In its review judgments of 2 July and 15 December 2004, SIAC
decided that the certificate should be maintained.
8. The eighth applicant
53. The eighth applicant is a Jordanian national, born in Bethlehem in
1960. He arrived in the United Kingdom on 16 September 1993 and claimed
asylum. He was recognised as a refugee and granted leave to remain until
30 June 1998. On 8 May 1998 he applied for indefinite leave to remain but
the application had not been determined at the time of the coming into force
of the 2001 Act.
54. The eighth applicant was convicted in absentia in Jordan for his
involvement in terrorist attacks there and in relation to a plot to plant bombs
to coincide with the millennium. He was investigated in February 2001 by
anti-terrorism police officers in connection with a plot to cause explosions
at the Strasbourg Christmas Market in December 2000, but no charges were
brought against him. When the 2001 Act was passed he went into hiding.
He was arrested on 23 October 2002 and was immediately made the subject
of a section 21 certificate and taken into detention. On the same date, a
deportation order was made against him.
55. In its judgment of 8 March 2004, dismissing the eighth applicants
appeal against certification, SIAC observed as follows:
[The eighth applicants counsel], on instructions from the Appellant, informed us
that his client had chosen not to attend the hearing or to participate in any way. He had
read the decisions relating to the Appellants who had been certified when the 2001
Act came into force and the generic judgment and so felt certain that the result of his
appeal was a foregone conclusion. There had been many references to his role in the
other appeals and some had been certified and detained, at least in part, on the basis
that they associated with him. Since that association was regarded as sufficient to
justify their continued detention, he considered that the decision on his appeal had, in
effect, already been taken. He had chosen not to play any part precisely because he
has no faith in the ability of the system to get at the truth. He considered that the SIAC
procedure had deliberately been established to avoid open and public scrutiny of the
respondents case, which deprived individuals of a fair opportunity to challenge the
case against them.
Having said that, [the eighth applicants counsel] made it clear that the appeal was
not being withdrawn. It was accordingly necessary for us to consider it and to take
into account the statement made by the Appellant. [His counsel] emphasised a number
25
26
however brilliant, could have persuaded us that reasonable suspicion had not been
established so that the certification was not justified. Thus the absence of Special
Advocates has not prejudiced the Appellant. ...
56. SIAC then summarised the open case against the applicant, which
was that he had associated with and acted as spiritual adviser to a number of
individuals and groups linked with al-Qaeda. He held extreme and
fundamentalist views and had been reported as having, in his speeches at a
London mosque, given his blessing to the killing of Jews and Americans,
wherever they were. SIAC concluded:
We are satisfied that the Appellants activities went far beyond the mere giving of
advice. He has certainly given the support of the Koran to those who wish to further
the aims of al-Qaeda and to engage in suicide bombing and other murderous activities.
The evidence is sufficient to show that he has been concerned in the instigation of acts
of international terrorism. But spiritual advice given in the knowledge of the purposes
for which and the uses to which it is to be put provides assistance within the meaning
of section 21(4) of the 2001 Act.
...
There are a large number of allegations made. We see no point in dealing with them
seriatim. We have indicated why we have formed the view that the case made against
the Appellant is established. Indeed, were the standard higher than reasonable
suspicion, we would have had no doubt that it was established. The Appellant was
heavily involved, indeed was at the centre in the United Kingdom of terrorist activities
associated with al-Qaeda. He is a truly dangerous individual and these appeals are
dismissed.
27
and that he had close links with others who had been convicted of credit
card fraud. SIAC held that evidence of involvement in fraud did not
establish involvement in terrorism. However, it noted that the applicant had
been present at a camp in Dorset in the company of the fifth applicant and a
number of others suspected of being GSPC supporters and that a telephone
bill had been found at his house at the time of his arrest in the name of
Yarkas, who had been arrested in Spain in November 2001 due to his
alleged links with al-Qaeda. The applicant had given evidence but had not
been a convincing witness and had not given a credible explanation for the
foregoing. The closed evidence supported the Secretary of States
allegations and SIAC therefore dismissed the applicants appeal against
certification.
60. In its review judgments of 2 July 2004 and 15 December 2004,
SIAC held that the certificate was properly maintained.
10. The tenth applicant
61. The tenth applicant is an Algerian national. Following a bomb
explosion in Algeria, his left hand was amputated at the wrist and his right
arm was amputated below the elbow. In 1999 he travelled to the United
Kingdom, via Abu Dhabi and Afghanistan, and claimed asylum. His claim
was refused on 27 February 2001. He was then in custody, having been
arrested on 15 February 2001 and charged with possession of articles for
suspected terrorist purposes, conspiracy to defraud and conspiracy to make
false instruments. At the time of his arrest he was found to have in his
possession approximately forty blank French driving licences, identity cards
and passports, a credit card reader, laminators and an embossing machine.
The charges were not, however, proceeded with and he was released on
17 May 2001.
62. On 14 January 2003 the Secretary of State issued a certificate against
him under section 21 of the 2001 Act and he was taken into detention. A
deportation order was made against him on the same day.
63. In its judgment of 27 January 2004, SIAC noted that the essence of
the case against the tenth applicant was that since his arrival in the United
Kingdom he had been closely associated with a network of extremists
formerly led by Abu Doha (see paragraph 26 above). In particular, it was
alleged that he had provided logistical support in the form of false
documentation and money raised through credit card fraud. He had spent a
lot of time at the Finsbury Park Mosque, a known centre of Islamist
extremism, and was alleged to have attended a meeting there in June 2001 at
which threats were made against the G8 summit in Genoa.
The applicant submitted a written statement on 28 June 2003 in which he
denied the allegations against him. He did not, however, participate in the
hearing of his appeal, as SIAC explained in its judgment:
28
SIAC found that there was ample evidence to support the view that the
applicant was involved in fraudulent activities. The evidence before it, most
of it closed, was sufficient to establish that he was doing it to raise money
for terrorist causes and to support those involved in terrorism. It therefore
dismissed the appeal against certification.
64. SIAC reached similar decisions in its review judgments of 4 August
2004 and 16 February 2005. In the latter judgment, it noted that although
the applicant had been transferred to Broadmoor Secure Mental Hospital
because of mental health problems, that made no difference to the
assessment of the risk to national security which he would pose if released.
11. The eleventh applicant
65. The eleventh applicant is an Algerian national. He entered the
United Kingdom in February 1998, using a false Italian identity card, and
claimed asylum the following week. While his claim was pending, in July
2001, he travelled to Georgia using a false French passport and was
deported back to the United Kingdom, where he was informed that his
travel outside the United Kingdom had terminated his asylum claim. He
made a second claim for asylum, which was refused on 21 August 2001.
The applicant absconded. He was arrested on 10 October 2001 and held in
an immigration detention centre, from which he absconded in February
2002. He was rearrested on 19 September 2002 and detained at Belmarsh
Prison under immigration law provisions.
29
30
than an equally general denial, it is clear that in respect of other assessments [he] was
provided with a great deal of detailed information: names, dates, places and
supporting documents.
[The eleventh applicant] is in the best position to give an account of his whereabouts
and activities since he first claimed asylum in 1998. His written statement is
significant not so much for what it says, as for what it does not say. To take one
example: the visit to St Albans and the photo-booth where [the eleventh applicant]
says that the Respondents specific assertion is completely wrong ... [The eleventh
applicant] has not denied that he went to St Albans. He knows who accompanied him
and why they went there. He has not explained why they went there, nor has he
identified his companion, despite having been provided with the photographs taken
during the surveillance operation. ...
31
with other prisoners, make telephone calls and write and receive letters.
They had access to an imam and to their legal representatives. They had the
same level of access to health care, exercise, education and work as any
other prisoner of their security ranking.
Following a recommendation of the inspector appointed under the
2001 Act to review the detention regime, the Government created a Special
Unit at Woodhill Prison to house the 2001 Act detainees. The Unit, which
was refurbished in consultation with the detained applicants and their
representatives and had a specially selected and trained staff, would have
allowed for a more relaxed regime, including more out-of-cell time. The
applicants, however, chose not to move to the Unit, a decision which the
inspector found regrettable.
72. The first applicant, who alleged a history of ill-treatment in Israeli
detention and who had first been treated for depression in May 1999,
suffered a severe deterioration in his mental health while detained in
Belmarsh Prison. He was transferred to Broadmoor Secure Mental Hospital
in July 2002.
73. The seventh applicant reported a family history of psychiatric
disorder and had experienced depression as an adolescent. He claimed to
suffer increasingly throughout his detention from depression, paranoia and
auditory hallucinations. He attempted suicide in May 2004 and was
transferred to Broadmoor Secure Mental Hospital on 17 November 2004.
74. The tenth applicant, a double amputee, claimed to have been
detained and tortured in Algeria. He suffered a deterioration in his physical
and mental health in Belmarsh Prison. He went on hunger strike in
May/June 2003 and refused to use the prostheses which had been issued to
him or to cooperate with his nurses. Early in November 2003, the prison
authorities withdrew his nursing care. His legal representatives applied for
judicial review of this decision and in December 2003 nursing care was
resumed following the order of the Administrative Court. On 1 November
2004 the tenth applicant was transferred to Broadmoor Secure Mental
Hospital.
75. The European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) visited the detained
applicants in February 2002 and again in March 2004, and made a number
of criticisms of the conditions in which the detained applicants were held.
The Government rejected these criticisms (see paragraphs 101-102 below).
76. In October 2004, at the request of the applicants legal
representatives, a group of eight consultant psychiatrists prepared a Joint
Psychiatric Report on the detained applicants, which concluded:
The detainees originate from countries where mental illness is highly stigmatised.
In addition, for devout Muslims there is a direct prohibition against suicide. This is
particularly significant given the number who have attempted or are considering
suicide. All of the detainees have serious mental health problems which are the direct
32
result of, or are seriously exacerbated by, the indefinite nature of the detention. The
mental health problems predominantly take the form of major depressive disorder and
anxiety. A number of detainees have developed psychotic symptoms, as they have
deteriorated. Some detainees are also experiencing PTSD [post-traumatic stress
disorder] either as a result of their pre-migration trauma, the circumstances around
their arrest and imprisonment or the interaction between the two.
Continued deterioration in their mental health is affected also by the nature of, and
their mistrust in, the prison regime and the appeals process as well as the underlying
and central factor of the indefinite nature of detention. The prison health-care system
is unable to meet their health needs adequately. There is a failure to perceive selfharm and distressed behaviour as part of the clinical condition rather than merely
being seen as manipulation. There is inadequate provision for complex physical health
problems.
Their mental health problems are unlikely to resolve while they are maintained in
their current situation and given the evidence of repeated interviews it is highly likely
that they will continue to deteriorate while in detention.
The problems described by the detainees are remarkably similar to the problems
identified in the literature examining the impact of immigration detention. This
literature describes very high levels of depression and anxiety and eloquently makes
the point that the length of time in detention relates directly to the severity of
symptoms and that it is detention per se which is causing these problems to
deteriorate.
33
34
that the conditions we impose are sufficient to minimise the risk to the security of the
State if [the fifth applicant] is released, we can act as we have.
We must emphasise that the grant of bail is exceptional. We are only doing so
because the medical evidence is all one way and the detention has caused the mental
illness which will get worse. ...
81. The fifth applicant was, therefore, released on bail on 22 April 2004
on conditions amounting to house arrest. He was not permitted to leave his
home address and had to wear an electronic tag at all times. He had no
Internet access and a telephone link to the Security Service only. He was
required to report by telephone to the Security Service five times a day and
allow its agents access to his home at any time. He was not permitted
contact with any person other than his wife and child, legal representative
and a Home Office-approved doctor or see any visitor except with prior
Home Office approval.
G. Events following the House of Lords judgment of 16 December
2004
82. The declaration of incompatibility made by the House of Lords on
16 December 2004, in common with all such declarations, was not binding
on the parties to the litigation (see paragraph 94 below). The applicants
remained in detention, except for the second and fourth applicants who had
elected to leave the United Kingdom and the fifth applicant who had been
released on bail on conditions amounting to house arrest. Moreover, none of
the applicants was entitled, under domestic law, to compensation in respect
of their detention. The applicants, therefore, lodged their application to the
Court on 21 January 2005.
83. At the end of January 2005, the Government announced their
intention to repeal Part 4 of the 2001 Act and replace it with a regime of
control orders, which would impose various restrictions on individuals,
regardless of nationality, reasonably suspected of being involved in
terrorism.
84. Those applicants who remained in detention were released on
10-11 March 2005 and immediately made subject to control orders under
the Prevention of Terrorism Act 2005, which came into effect on 11 March
2005.
85. The Government withdrew the derogation notice on 16 March 2005.
86. On 11 August 2005, following negotiations commenced towards the
end of 2003 to seek from the Algerian and Jordanian governments
assurances that the applicants would not be ill-treated if returned, the
Government served notices of intention to deport on the fifth, sixth, seventh,
eighth, ninth, tenth and eleventh applicants. These applicants were taken
into immigration custody pending removal to Algeria (the fifth, sixth,
seventh, ninth, tenth and eleventh applicants) and Jordan (the eighth
35
applicant). On 9 April 2008 the Court of Appeal ruled that the eighth
applicant could not lawfully be extradited to Jordan, because it was likely
that evidence which had been obtained by torture could be used against him
there at trial, in flagrant violation of his right to a fair trial. At the date of
adoption of the present judgment, the case was pending before the House of
Lords.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention pending deportation before the passing of the 2001 Act
87. Under section 3(5) of the Immigration Act 1971 (the 1971 Act) the
Secretary of State could make a deportation order against a non-national, on
the ground that the deportation would be conducive to the public good, for
reasons of national security, inter alia. A person who was the subject of a
deportation order could be detained pending deportation (the 1971 Act,
Schedule 3, paragraph 2). However, it was held in R. v. Governor of
Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 that the power
to detain under the above provision was limited to such time as was
reasonable to enable the process of deportation to be carried out. Detention
was not, therefore, permissible under the 1971 Act where deportation was
known to be impossible, whether because there was no country willing to
take the person in question or because there would be a risk of torture or
other serious ill-treatment to the proposed deportee in his or her country of
origin.
B. The Terrorism Act 2000
88. In July 2000 Parliament enacted the Terrorism Act 2000. As Lord
Bingham noted in his judgment in the present case, this was a substantial
measure, with 131 sections and 16 Schedules, intended to overhaul,
modernise and strengthen the law relating to the growing problem of
terrorism. Terrorism was defined, in section 1 of the Act, as:
... the use or threat of action where
(a) the action falls within subsection (2);
(b) the use or threat is designed to influence the government or to intimidate the
public or a section of the public; and
(c) the use or threat is made for the purpose of advancing a political, religious or
ideological cause.
(2) Action falls within this subsection if it
(a) involves serious violence against a person;
(b) involves serious damage to property;
36
(c) endangers a persons life, other than that of the person committing the action;
(d) creates a serious risk to the health or safety of the public or a section of the
public; or
(e) is designed seriously to interfere with or seriously to disrupt an electronic
system.
(3) The use or threat of action falling within subsection (2) which involves the use
of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section
(a) action includes action outside the United Kingdom;
(b) a reference to any person or to property is a reference to any person, or to
property, wherever situated;
(c) a reference to the public includes a reference to the public of a country other
than the United Kingdom; and
(d) the government means the government of the United Kingdom, of a part of the
United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a
reference to action taken for the benefit of a proscribed organisation.
37
38
terrorism has the meaning given by section 1 of the Terrorism Act 2000 (c. 11);
and
suspected international terrorist means a person certified under subsection (1).
(6) Where the Secretary of State issues a certificate under subsection (1) he shall as
soon as is reasonably practicable
(a) take reasonable steps to notify the person certified; and
(b) send a copy of the certificate to the Special Immigration Appeals Commission.
(7) The Secretary of State may revoke a certificate issued under subsection (1).
(8) A decision of the Secretary of State in connection with certification under this
section may be questioned in legal proceedings only under section 25 or 26.
(9) An action of the Secretary of State taken wholly or partly in reliance on a
certificate under this section may be questioned in legal proceedings only by or in the
course of proceedings under
(a) section 25 or 26; or
(b) section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68)
(appeal).
22. Deportation, removal, etc.
(1) An action of a kind specified in subsection (2) may be taken in respect of a
suspected international terrorist despite the fact that (whether temporarily or
indefinitely) the action cannot result in his removal from the United Kingdom because
of
(a) a point of law which wholly or partly relates to an international agreement; or
(b) a practical consideration ...
(2) The actions mentioned in subsection (1) are
...
(e) making a deportation order ...
(3) Action of a kind specified in subsection (2) which has effect in respect of a
suspected international terrorist at the time of his certification under section 21 shall
be treated as taken again (in reliance on subsection (1) above) immediately after
certification.
23. Detention
(1) A suspected international terrorist may be detained under a provision specified
in subsection (2) despite the fact that his removal or departure from the United
Kingdom is prevented (whether temporarily or indefinitely) by
(a) a point of law which wholly or partly relates to an international agreement; or
(b) a practical consideration ...
(2) The provisions mentioned in subsection (1) are
(a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (c. 77) (detention of
persons liable to examination or removal); and
(b) paragraph 2 of Schedule 3 to that Act (detention pending deportation).
39
Part 4 of the 2001 Act included a provision that the legislation would
remain in force for five years only and was subject to an annual affirmative
resolution by both Houses of Parliament.
D. The Special Immigration Appeals Commission (SIAC)
91. SIAC was set up in response to the Courts judgment in Chahal v.
the United Kingdom ([GC], 15 November 1996, Reports of Judgments and
Decisions 1996-V). It is a tribunal composed of independent judges, with a
right of appeal against its decisions on a point of law to the Court of Appeal
and the House of Lords.
By section 25 of the 2001 Act:
(1) A suspected international terrorist may appeal to the Special Immigration
Appeals Commission against his certification under section 21.
(2) On an appeal [SIAC] must cancel the certificate if
(a) it considers that there are no reasonable grounds for a belief or suspicion of the
kind referred to in section 21(1) (a) or (b); or
(b) if it considers that for some other reason the certificate should not have been
issued.
SIAC was required to carry out a first review to ensure that the certificate
was still justified six months after the issue of the certificate or six months
after the final determination of an appeal against certification, and thereafter
at three-monthly intervals.
Under section 30 of the 2001 Act, any legal challenge to the derogation
under Article 15 of the Convention had also to be made to SIAC.
92. SIAC has a special procedure which enables it to consider not only
material which can be made public (open material) but also material
which, for reasons of national security, cannot (closed material). Neither
the appellant nor his legal adviser can see the closed material. Accordingly,
one or more security-cleared counsel, referred to as special advocates, are
appointed by the solicitor-general to act on behalf of each appellant.
93. In the certification appeals before SIAC at issue in the present case,
the open statements and evidence concerning each appellant were served
first, and the special advocate could discuss this material with the appellant
and his legal advisers and take instructions generally. Then the closed
material would be disclosed to the judges and to the special advocate, from
which point there could be no further contact between the latter and the
appellant and/or his representatives, save with the permission of SIAC. It
was the special advocates role during the closed sessions to make
submissions on behalf of the appellant, both as regards procedural matters,
such as the need for further disclosure, and as to the substance of the case.
In respect of each appeal against certification, SIAC issued both an open
40
and a closed judgment. The special advocate could see both but the
detainee and his representatives could see only the open judgment.
E. Declarations of incompatibility under the Human Rights Act 1998
94. Section 4 of the 1998 Act provides that where a court finds that
primary legislation is in breach of the Convention, the court may make a
declaration of incompatibility. Such a declaration does not affect the
validity of the provision in respect of which it is made and is not binding on
the parties to the proceedings in which it is made, but special arrangements
may be made (section 10) to amend the provision in order to remove the
incompatibility (see, further, Burden v. the United Kingdom [GC],
no. 13378/05, 21-24 and 40-44, ECHR 2008).
F. The Terrorism Act 2006
95. The Terrorism Act 2006 came into force on 30 March 2006, creating
a number of offences to extend criminal liability to acts preparatory to the
terrorist offences created by the Terrorism Act 2000. The new offences were
encouragement, dissemination of publications, preparation and training. The
offences were designed to intervene at an early stage in terrorist activity and
thus prevent the development of more serious conduct. They were also
designed to be easier to prove.
G. Consideration of the use of special advocates under the
Prevention of Terrorism Act 2005
96. On 31 October 2007 the House of Lords gave judgment in Secretary
of State for the Home Department (Respondent) v. MB (FC) (Appellant)
[2007] UKHL 46, which concerned a challenge to a non-derogating control
order made by the Secretary of State under sections 2 and 3(1)(a) of the
Prevention of Terrorism Act 2005. The House of Lords had to decide, inter
alia, whether procedures provided for by section 3 of the 2005 Act,
involving closed hearings and special advocates, were compatible with
Article 6 of the Convention, given that, in the case of one of the appellants,
they had resulted in the case against him being in its essence entirely
undisclosed, with no specific allegation of terrorism-related activity being
contained in open material.
The House of Lords was unanimous in holding that the proceedings in
question determined civil rights and obligations and thus attracted the
protection of Article 6. On the question of compliance, the majority
(Baroness Hale, Lord Carswell and Lord Brown) held that although in many
cases the special-advocate procedure would provide a sufficient
counterbalance where the Secretary of State wished to withhold material
41
42
between the open material and the closed material and the probative nature of each
will vary from case to case. The special advocate may be able to discern with
sufficient clarity how to deal with the closed material without obtaining direct
instructions from the controlee. These are matters for the judge to weigh up and assess
in the process of determining whether the controlee has had a fair trial. The
assessment is ... fact-specific. The judge who has seen both the open and the closed
material and had the benefit of the contribution of the special advocate is in much the
best position to make it. I do consider, however, that there is a fairly heavy burden on
the controlee to establish that there has been a breach of Article 6, for the legitimate
public interest in withholding material on valid security grounds should be given due
weight. The courts should not be too ready to hold that a disadvantage suffered by the
controlee through the withholding of material constitutes a breach of Article 6.
Lord Bingham did not dissent but employed different reasoning. He held
that it was necessary to look at the process as a whole and consider whether
a procedure had been used which involved significant injustice to the
controlee; while the use of special advocates could help to enhance the
measure of procedural justice available to a controlled person, it could not
fully remedy the grave disadvantages of a person not being aware of the
case against him and not being able, therefore, effectively to instruct the
special advocate.
Lord Hoffmann, dissenting, held that once the trial judge had decided
that disclosure would be contrary to the public interest, the use of special
advocates provided sufficient safeguards for the controlee and there would
never in these circumstances be a breach of Article 6.
97. In Secretary of State for the Home Department v. AF [2008] EWCA
Civ 1148, the Court of Appeal (Sir Anthony Clark MR and Waller LJ;
Sedley LJ dissenting), gave the following guidance, based on the majority
opinions in the case of MB (see paragraph 96 above), regarding compliance
with Article 6 in control order cases using special advocates (extract from
the head-note):
(1) In deciding whether the hearing under section 3(10) of the 2005 Act infringed
the controlees rights under Article 6 the question was whether, taken as a whole, the
hearing was fundamentally unfair to the controlee, or he was not accorded a
43
substantial measure of procedural justice or the very essence of his right to a fair
hearing was impaired. More broadly, the question was whether the effect of the
process was that the controlee was exposed to significant injustice. (2) All proper
steps ought to be taken to provide the controlee with as much information as possible,
both in terms of allegation and evidence, if necessary by appropriate gisting.
(3) Where the full allegations and evidence were not provided for reasons of national
security at the outset, the controlee had to be provided with a special advocate. In such
a case the following principles applied. (4) There was no principle that a hearing
would be unfair in the absence of open disclosure to the controlee of an irreducible
minimum of allegation or evidence. Alternatively, if there was, the irreducible
minimum could, depending on the circumstances, be met by disclosure of as little
information as was provided in AFs case, which was very little indeed. (5) Whether a
hearing would be unfair depended on all the circumstances, including the nature of the
case, what steps had been taken to explain the detail of the allegations to the
controlled person so that he could anticipate what the material in support might be,
what steps had been taken to summarise the closed material in support without
revealing names, dates or places, the nature and content of the material withheld, how
effectively the special advocate was able to challenge it on behalf of the controlee and
what difference its disclosure would or might make. (6) In considering whether open
disclosure to the controlee would have made a difference to the answer to whether
there were reasonable grounds for suspicion that the controlee was or had been
involved in terrorist-related activity, the court had to have fully in mind the problems
for the controlee and the special advocates and take account of all the circumstances
of the case, including what, if any, information was openly disclosed and how
effective the special advocates were able to be. The correct approach to and the
weight to be given to any particular factor would depend upon the particular
circumstances. (7) There were no rigid principles. What was fair was essentially a
matter for the judge, with whose decision the Court of Appeal would very rarely
interfere.
Given this evidence, the Newton Committee observed that not only were
there arguments of principle against having discriminatory provisions, but
44
The Government also indicated that work was under way to try to
establish framework agreements with potential destination countries for the
purposes of deportation of terrorist suspects.
B. The Joint Parliamentary Committee on Human Rights
100. The Joint Committee has constitutional responsibility in the United
Kingdom for scrutinising legislation to ensure that it is compatible with
Convention rights. In its Second Report of the Session 2001-02, drawn up
very shortly after publication of the Bill which became the 2001 Act, the
Joint Committee expressed concern at the potentially discriminatory effect
of the proposed measure, as follows:
38. Second, by relying on immigration legislation to provide for the detention of
suspected international terrorists, the Bill risks discriminating, in the authorisation of
detention without charge, between those suspected international terrorists who are
subject to immigration control and those who have an unconditional right to remain in
the United Kingdom. We are concerned that this might lead to discrimination in the
enjoyment of the right to liberty on the ground of nationality. If that could not be
shown to have an objective, rational and proportionate justification, it might lead to
actions which would be incompatible with Article 5 of the ECHR [the Convention]
either taken alone or in combination with the right to be free of discrimination in the
enjoyment of Convention rights under Article 14 of the ECHR[the Convention]. It
could also lead to violations of the right to be free of discrimination under Article 26
and the right to liberty under Article 9 of the ICCPR [International Covenant on Civil
and Political Rights].
39. We raised this matter with the Home Secretary in oral evidence. Having
considered his response, we are not persuaded that the risk of discrimination on the
ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken
on board.
45
In its Sixth Report of the Session 2003-04 (23 February 2004), the Joint
Committee expressed deep concern about the human rights implications of
making the detention power an aspect of immigration law rather than antiterrorism law and warned of a significant risk that Part 4 violates the right
to be free of discrimination under ECHR [the Convention] Article 14.
Following the Report of the Newton Committee and the Secretary of States
discussion paper published in response to it, the Joint Committee returned to
this subject in its Eighteenth Report of the Session 2003-04 (21 July 2004),
paragraphs 42-44:
42. The discussion paper rejects the Newton Reports recommendation that new
legislation replacing Part 4 [of the 2001 Act] should apply equally to all nationalities
including British citizens. It states the Governments belief that it is defensible to
distinguish between foreign nationals and UK nationals because of their different
rights and responsibilities.
43. We have consistently expressed our concern that the provisions of Part 4 [of the
2001 Act] unjustifiably discriminate on grounds of nationality and are therefore in
breach of Article 14 ECHR [of the Convention]. Along with Lord Newton, we find it
extraordinary that the discussion paper asserts that seeking the same power to detain
British citizens would be a very grave step and that such draconian powers would
be difficult to justify.
44. The interests at stake for a foreign national and a UK national are the same:
their fundamental right to liberty under Article 5 ECHR [of the Convention] and
related procedural rights. Article 1 of the ECHR [the Convention] requires States to
secure the Convention rights to everyone within their jurisdiction. Article 14 requires
the enjoyment of Convention rights to be secured without discrimination on the
ground of nationality. The Governments explanation in its discussion paper of its
reluctance to seek the same powers in relation to UK nationals appears to suggest that
it regards the liberty interests of foreign nationals as less worthy of protection than
exactly the same interests of UK nationals, which is impermissible under the
Convention.
46
102. The Government published their response to the CPTs 2004 report
on 9 June 2005. The Government strongly disputed the allegations of illtreatment by prison staff and pointed out that the detained applicants had at
their disposal the remedies provided by administrative and civil law to all
prisoners to complain of ill-treatment. The Governments response
continued:
Although the Government respects the conclusions reached by the delegates of the
[CPT] based on the observations on the day of visit, it categorically rejects the
suggestion that at any point during their detention the [2001 Act] detainees were
treated in an inhuman or degrading manner that may have amounted to a breach in
the United Kingdoms international human rights obligations. The Government firmly
believes that at all times the detainees received appropriate care and treatment in
Belmarsh and had access to all necessary medical support, both physical and
psychological, from medical support staff and doctors. The Government accepts that
the individuals had difficult backgrounds prior to detention, but does not accept that
detention had caused mental disorders. Some of the detainees had mental health
issues prior to detention, but that did not stop them engaging in the activities that led
to their certification and detention. Mental health issues do not prevent an individual
from posing a risk to national security.
...
The Government does not accept that those certified under [the 2001 Act] were
detained without any prospect of their release. ...
...
On no occasion did SIAC, or any other court, find that the conditions of detention
breached the absolute obligation imposed upon the Government by Article 3 of [the
Convention]. It is the Governments view that, given the extensive judicial safeguards
available to the detainees, the Government would not have been able to maintain the
detention of these individuals had the powers breached the detainees Article 3 rights
in any way. To suggest otherwise would be to ignore the extensive contact the
detainees had with the British judicial system and the absolute obligation upon the
judiciary to protect against any such breach.
47
48
49
50
That right was not absolute and might be limited in the interests of
national security (paragraphs 57-58); however, paragraph 64 provides:
... The judge is therefore not in a position to compensate for the lack of informed
scrutiny, challenge and counter-evidence that a person familiar with the case could
bring. Such scrutiny is the whole point of the principle that a person whose liberty is
in jeopardy must know the case to meet. Here that principle has not merely been
limited; it has been effectively gutted. How can one meet a case one does not know?
51
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
AND OF ARTICLE 13 TAKEN IN CONJUNCTION WITH
ARTICLE 3
114. The applicants alleged that their detention under Part 4 of the 2001
Act breached their rights under Article 3 of the Convention, which provides:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
They further complained that they were denied an effective remedy for
their Article 3 complaints, in breach of Article 13 of the Convention, which
states:
Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.
52
53
which he represented and the possibility to deport him to a safe country, and
was subject to review every six months by SIAC. Each applicant was
informed of the reason for the suspicion against him and given as much of
the underlying evidence as possible and provided with as fair a procedure as
possible to challenge the grounds for his detention. Moreover, SIAC was
able to grant bail if necessary. The applicants were not, therefore, detained
without hope of release: on the contrary there was the opportunity to apply
for release together with mandatory review by the court to ensure that
detention remained both lawful and proportionate in all the circumstances. It
also remained open to the applicants to leave the United Kingdom, as the
second and fourth applicants chose to do.
121. The applicants were judged to pose a serious threat to national
security and were accordingly held in high security conditions, which were
not inhuman or degrading. Each was provided with appropriate treatment
for his physical and mental health problems and the individual
circumstances of each applicant, including his mental health, were taken
into account in determining where he should be held and whether he should
be released on bail. A Special Unit was created at Woodhill Prison of which
the applicants refused to make use (see paragraph 71 above).
122. To the extent that the applicants relied on their individual
conditions of detention and their personal circumstances, they had not
exhausted domestic remedies because they had not made any attempt to
bring the necessary challenges. Any specific complaint about the conditions
of detention could have been the subject of separate legal challenge. The
prison authorities were subject to the requirements of the 1998 Act (see
paragraph 94 above) and had an obligation under section 6(1) to act
compatibly with the Article 3 rights of the applicants in their custody. In so
far as the applicants complaints under Article 3 were based on the
indeterminate nature of their detention, this was provided for by primary
legislation (Part 4 of the 2001 Act), and Article 13 did not import the right
to challenge in a domestic court a deliberate choice expressed by the
legislature.
B. The Courts assessment
1. Admissibility
123. The Court observes that the second applicant was placed in
detention under Part 4 of the 2001 Act on 19 December 2001 and that he
was released on 22 December 2001, following his decision voluntarily to
return to Morocco (see paragraph 35 above). Since he was, therefore,
detained for only a few days and since there is no evidence that during that
time he suffered any hardship beyond that inherent in detention, his
54
55
129. The Court notes that three of the applicants were held for
approximately three years and three months while the others were held for
shorter periods. During a large part of that detention, the applicants could
not have foreseen when, if ever, they would be released. They refer to the
56
findings of the Joint Psychiatric Report and contend that the indefinite
nature of their detention caused or exacerbated serious mental health
problems in each of them. The Government dispute this conclusion and rely
on Dr J.s report, which criticised the methodology of the authors of the
Joint Report (see paragraphs 76-77 above).
130. The Court considers that the uncertainty regarding their position
and the fear of indefinite detention must, undoubtedly, have caused the
applicants great anxiety and distress, as it would virtually any detainee in
their position. Furthermore, it is probable that the stress was sufficiently
serious and enduring to affect the mental health of certain of the applicants.
This is one of the factors which the Court must take into account when
assessing whether the threshold of Article 3 was attained.
131. It cannot, however, be said that the applicants were without any
prospect or hope of release (see Kafkaris, cited above, 98). In particular,
they were able to bring proceedings to challenge the legality of the detention
scheme under the 2001 Act and were successful before SIAC on 30 July
2002, and before the House of Lords on 16 December 2004. In addition,
each applicant was able to bring an individual challenge to the decision to
certify him and SIAC was required by statute to review the continuing case
for detention every six months. The Court does not, therefore, consider that
the applicants situation was comparable to an irreducible life sentence, of
the type designated in the Kafkaris judgment as capable of giving rise to an
issue under Article 3.
132. The applicants further contend that the conditions in which they
were held contributed towards an intolerable level of suffering. The Court
notes in this respect that the Joint Psychiatric Report also contained
criticisms of the prison health-care system and concluded that there was
inadequate provision for the applicants complex health problems. These
concerns were echoed by the CPT, which made detailed allegations about
the conditions of detention and concluded that for some of the applicants,
their situation at the time of the visit could be considered as amounting to
inhuman and degrading treatment. The Government strongly disputed
these criticisms in their response to the CPTs report (see paragraphs 101102 above).
133. The Court observes that each detained applicant had at his disposal
the remedies available to all prisoners under administrative and civil law to
challenge conditions of detention, including any alleged inadequacy of
medical treatment. The applicants did not attempt to make use of these
remedies and did not therefore comply with the requirement under
Article 35 of the Convention to exhaust domestic remedies. It follows that
the Court cannot examine the applicants complaints about their conditions
of detention; nor can it, in consequence, take the conditions of detention into
account in forming a global assessment of the applicants treatment for the
purposes of Article 3.
57
134. In all the above circumstances, the Court does not find that the
detention of the applicants reached the high threshold of inhuman and
degrading treatment.
135. The applicants also complained that they did not have effective
domestic remedies for their Article 3 complaints, in breach of Article 13. In
this connection, the Court repeats its above finding that civil and
administrative law remedies were available to the applicants had they
wished to complain about their conditions of detention. As for the more
fundamental aspect of the complaints, that the very nature of the detention
scheme in Part 4 of the 2001 Act gave rise to a breach of Article 3, the
Court reiterates that Article 13 does not guarantee a remedy allowing a
challenge to primary legislation before a national authority on the ground of
being contrary to the Convention (see James and Others v. the United
Kingdom, 21 February 1986, 85, Series A no. 98, and Roche v. the United
Kingdom [GC], no. 32555/96, 137, ECHR 2005-X).
136. In conclusion, therefore, the Court does not find a violation of
Article 3, taken alone or in conjunction with Article 13.
II. ALLEGED VIOLATION OF ARTICLE 5 1 OF THE CONVENTION
137. The applicants contended that their detention was unlawful and
incompatible with Article 5 1 of the Convention.
138. In their first set of written observations, following the
communication of the application by the Chamber, the Government
indicated that they would not seek to raise the question of derogation under
Article 15 of the Convention as a defence to the claim based on Article 5
1, but would leave that point as determined against them by the House of
Lords. Instead, they intended to focus their argument on the defence that the
applicants were lawfully detained with a view to deportation, within the
meaning of Article 5 1 (f).
However, in their written observations to the Grand Chamber, dated
11 February 2008, the Government indicated for the first time that they
wished to argue that the applicants detention did not in any event give rise
to a violation of Article 5 1 because the United Kingdoms derogation
under Article 15 was valid.
139. Article 5 1 of the Convention provides, in so far as relevant:
1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
...
(f) the lawful arrest or detention of a person ... against whom action is being taken
with a view to deportation or extradition.
58
1. In time of war or other public emergency threatening the life of the nation any
High Contracting Party may take measures derogating from its obligations under [the]
Convention to the extent strictly required by the exigencies of the situation, provided
that such measures are not inconsistent with its other obligations under international
law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful
acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this
provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep
the Secretary General of the Council of Europe fully informed of the measures which
it has taken and the reasons therefore. It shall also inform the Secretary General of the
Council of Europe when such measures have ceased to operate and the provisions of
the Convention are again being fully executed.
59
60
61
62
63
64
65
66
67
169. It is true that even the applicants who were detained the longest
were not held for as long as the applicant in Chahal (cited above), where the
Court found no violation of Article 5 1 despite his imprisonment for over
six years. However, in the Chahal case, throughout the entire period of the
detention, proceedings were being actively and diligently pursued, before
the domestic authorities and the Court, in order to determine whether it
would be lawful and compatible with Article 3 of the Convention to proceed
with the applicants deportation to India. The same cannot be said in the
present case, where the proceedings have, instead, been primarily concerned
with the legality of the detention.
170. In the circumstances of the present case it cannot be said that the
first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants
were persons against whom action [was] being taken with a view to
deportation or extradition. Their detention did not, therefore, fall within the
exception to the right to liberty set out in Article 5 1 (f) of the Convention.
This is a conclusion which was also, expressly or impliedly, reached by a
majority of the members of the House of Lords (see paragraph 17 above).
171. It is, instead, clear from the terms of the derogation notice and
Part 4 of the 2001 Act that the applicants were certified and detained
because they were suspected of being international terrorists and because it
was believed that their presence at liberty in the United Kingdom gave rise
to a threat to national security. The Court does not accept the Governments
argument that Article 5 1 permits a balance to be struck between the
individuals right to liberty and the States interest in protecting its
population from terrorist threat. This argument is inconsistent not only with
the Courts jurisprudence under sub-paragraph (f) but also with the principle
that sub-paragraphs (a) to (f) amount to an exhaustive list of exceptions and
that only a narrow interpretation of these exceptions is compatible with the
aims of Article 5. If detention does not fit within the confines of the subparagraphs as interpreted by the Court, it cannot be made to fit by an appeal
to the need to balance the interests of the State against those of the detainee.
172. The Court reiterates that it has, on a number of occasions, found
internment and preventive detention without charge to be incompatible with
the fundamental right to liberty under Article 5 1, in the absence of a valid
derogation under Article 15 (see Lawless v. Ireland (no. 3), 1 July 1961,
pp. 34-36, 13-14, Series A no. 3, and Ireland v. the United Kingdom,
cited above, 194-96 and 212-13). It must now, therefore, consider
whether the United Kingdoms derogation was valid.
68
(b) Whether the United Kingdom validly derogated from its obligations under
Article 5 1 of the Convention
(i) The Courts approach
173. The Court reiterates that it falls to each Contracting State, with its
responsibility for the life of [its] nation, to determine whether that life is
threatened by a public emergency and, if so, how far it is necessary to go
in attempting to overcome the emergency. By reason of their direct and
continuous contact with the pressing needs of the moment, the national
authorities are in principle better placed than the international judge to
decide both on the presence of such an emergency and on the nature and
scope of the derogations necessary to avert it. Accordingly, in this matter a
wide margin of appreciation should be left to the national authorities.
Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It
is for the Court to rule whether, inter alia, the States have gone beyond the
extent strictly required by the exigencies of the crisis. The domestic
margin of appreciation is thus accompanied by a European supervision. In
exercising this supervision, the Court must give appropriate weight to such
relevant factors as the nature of the rights affected by the derogation and the
circumstances leading to, and the duration of, the emergency situation (see
Ireland v. the United Kingdom, cited above, 207; Brannigan and McBride
v. the United Kingdom, 26 May 1993, 43, Series A no. 258-B; and Aksoy,
cited above, 68).
174. The object and purpose underlying the Convention, as set out in
Article 1, is that the rights and freedoms should be secured by the
Contracting State within its jurisdiction. It is fundamental to the machinery
of protection established by the Convention that the national systems
themselves provide redress for breaches of its provisions, with the Court
exercising a supervisory role subject to the principle of subsidiarity (see Z
and Others v. the United Kingdom [GC], no. 29392/95, 103, ECHR
2001-V). Moreover, the domestic courts are part of the national
authorities to which the Court affords a wide margin of appreciation under
Article 15. In the unusual circumstances of the present case, where the
highest domestic court has examined the issues relating to the States
derogation and concluded that there was a public emergency threatening the
life of the nation but that the measures taken in response were not strictly
required by the exigencies of the situation, the Court considers that it would
be justified in reaching a contrary conclusion only if satisfied that the
national court had misinterpreted or misapplied Article 15 or the Courts
jurisprudence under that Article or reached a conclusion which was
manifestly unreasonable.
69
(ii) Whether there was a public emergency threatening the life of the nation
175. The applicants argued that there had been no public emergency
threatening the life of the British nation, for three main reasons: firstly, the
emergency was neither actual nor imminent; secondly, it was not of a
temporary nature; and, thirdly, the practice of other States, none of which
had derogated from the Convention, together with the informed views of
other national and international bodies, suggested that the existence of a
public emergency had not been established.
176. The Court reiterates that in Lawless (cited above, 28), it held that
in the context of Article 15 the natural and customary meaning of the words
other public emergency threatening the life of the nation was sufficiently
clear and that they referred to an exceptional situation of crisis or
emergency which affects the whole population and constitutes a threat to the
organised life of the community of which the State is composed. In the
Greek case (Denmark, Norway, Sweden and the Netherlands v. Greece,
nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commissions report of
5 November 1969, Yearbook 12, p. 70, 113), the Commission held that, in
order to justify a derogation, the emergency should be actual or imminent;
that it should affect the whole nation to the extent that the continuance of
the organised life of the community was threatened; and that the crisis or
danger should be exceptional, in that the normal measures or restrictions,
permitted by the Convention for the maintenance of public safety, health
and order, were plainly inadequate. In Ireland v. the United Kingdom (cited
above, 205 and 212), the parties were agreed, as were the Commission
and the Court, that the Article 15 test was satisfied, since terrorism had for a
number of years represented a particularly far-reaching and acute danger
for the territorial integrity of the United Kingdom, the institutions of the six
counties and the lives of the provinces inhabitants. The Court reached
similar conclusions as regards the continuing security situation in Northern
Ireland in Brannigan and McBride (cited above) and Marshall v. the United
Kingdom ((dec.), no. 41571/98, 10 July 2001). In Aksoy (cited above), it
accepted that Kurdish separatist violence had given rise to a public
emergency in Turkey.
177. Before the domestic courts, the Secretary of State adduced evidence
to show the existence of a threat of serious terrorist attacks planned against
the United Kingdom. Additional closed evidence was adduced before SIAC.
All the national judges accepted that the danger was credible (with the
exception of Lord Hoffmann, who did not consider that it was of a nature to
constitute a threat to the life of the nation see paragraph 18 above).
Although when the derogation was made no al-Qaeda attack had taken place
within the territory of the United Kingdom, the Court does not consider that
the national authorities can be criticised, in the light of the evidence
available to them at the time, for fearing that such an attack was
imminent, in that an atrocity might be committed without warning at any
70
71
basis of the facts known to them. Weight must, therefore, attach to the
judgment of the United Kingdoms executive and Parliament on this
question. In addition, significant weight must be accorded to the views of
the national courts, which were better placed to assess the evidence relating
to the existence of an emergency.
181. On this first question, the Court accordingly shares the view of the
majority of the House of Lords that there was a public emergency
threatening the life of the nation.
(iii) Whether the measures were strictly required by the exigencies of the
situation
182. Article 15 provides that the State may take measures derogating
from its obligations under the Convention only to the extent strictly
required by the exigencies of the situation. As previously stated, the Court
considers that it should in principle follow the judgment of the House of
Lords on the question of the proportionality of the applicants detention,
unless it can be shown that the national court misinterpreted the Convention
or the Courts case-law or reached a conclusion which was manifestly
unreasonable. It will consider the Governments challenges to the House of
Lords judgment against this background.
183. The Government contended, firstly, that the majority of the House
of Lords should have afforded a much wider margin of appreciation to the
executive and Parliament to decide whether the applicants detention was
necessary. A similar argument was advanced before the House of Lords,
where the Attorney-General submitted that the assessment of what was
needed to protect the public was a matter of political rather than judicial
judgment (see paragraph 19 above).
184. When the Court comes to consider a derogation under Article 15, it
allows the national authorities a wide margin of appreciation to decide on
the nature and scope of the derogating measures necessary to avert the
emergency. Nonetheless, it is ultimately for the Court to rule whether the
measures were strictly required. In particular, where a derogating measure
encroaches upon a fundamental Convention right, such as the right to
liberty, the Court must be satisfied that it was a genuine response to the
emergency situation, that it was fully justified by the special circumstances
of the emergency and that adequate safeguards were provided against abuse
(see, for example, Brannigan and McBride, cited above, 48-66; Aksoy,
cited above, 71-84; and the principles outlined in paragraph 173 above).
The doctrine of the margin of appreciation has always been meant as a tool
to define relations between the domestic authorities and the Court. It cannot
have the same application to the relations between the organs of State at the
domestic level. As the House of Lords held, the question of proportionality
is ultimately a judicial decision, particularly in a case such as the present
where the applicants were deprived of their fundamental right to liberty over
72
a long period of time. In any event, having regard to the careful way in
which the House of Lords approached the issues, it cannot be said that
inadequate weight was given to the views of the executive or of Parliament.
185. The Government also submitted that the House of Lords erred in
examining the legislation in the abstract rather than considering the
applicants concrete cases. However, in the Courts view, the approach
under Article 15 is necessarily focused on the general situation pertaining in
the country concerned, in the sense that the court whether national or
international is required to examine the measures that have been adopted
in derogation of the Convention rights in question and to weigh them
against the nature of the threat to the nation posed by the emergency.
Where, as here, the measures are found to be disproportionate to that threat
and to be discriminatory in their effect, there is no need to go further and
examine their application in the concrete case of each applicant.
186. The Governments third ground of challenge to the House of Lords
decision was directed principally at the approach taken towards the
comparison between non-national and national suspected terrorists. The
Court, however, considers that the House of Lords was correct in holding
that the impugned powers were not to be seen as immigration measures,
where a distinction between nationals and non-nationals would be
legitimate, but instead as concerned with national security. Part 4 of the
2001 Act was designed to avert a real and imminent threat of terrorist attack
which, on the evidence, was posed by both nationals and non-nationals. The
choice by the Government and Parliament of an immigration measure to
address what was essentially a security issue had the result of failing
adequately to address the problem, while imposing a disproportionate and
discriminatory burden of indefinite detention on one group of suspected
terrorists. As the House of Lords found, there was no significant difference
in the potential adverse impact of detention without charge on a national or
on a non-national who in practice could not leave the country because of
fear of torture abroad.
187. Finally, the Government advanced two arguments which the
applicants claimed had not been relied on before the national courts.
Certainly, there does not appear to be any reference to them in the national
courts judgments or in the open material which has been put before the
Court. In these circumstances, even assuming that the principle of
subsidiarity does not prevent the Court from examining new grounds, it
would require persuasive evidence in support of them.
188. The first of the allegedly new arguments was that it was legitimate
for the State, in confining the measures to non-nationals, to take into
account the sensitivities of the British Muslim population in order to reduce
the chances of recruitment among them by extremists. However, the
Government have not placed before the Court any evidence to suggest that
British Muslims were significantly more likely to react negatively to the
73
OF
ARTICLE
OF
THE
193. The applicants contended that the procedure before the domestic
courts to challenge their detention did not comply with the requirements of
Article 5 4, which states:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.
74
75
76
found to be unlawful. Since the second and fourth applicants were already at
liberty, having elected to travel to Morocco and France respectively, by the
time the various proceedings to determine the lawfulness of the detention
under the 2001 Act were commenced, it follows that these two applicants
complaints under Article 5 4 are manifestly ill-founded within the
meaning of Article 35 3 of the Convention (see Fox, Campbell and
Hartley v. the United Kingdom, 30 August 1990, 45, Series A no. 182)
and must be declared inadmissible.
201. The Court considers that the other applicants complaints under this
provision raise complex issues of law and fact, the determination of which
should depend on an examination of the merits. It concludes, therefore, that
this part of the application is not manifestly ill-founded within the meaning
of Article 35 3 of the Convention. No other ground of inadmissibility has
been raised and it must be declared admissible.
2. The merits
(a) The principles arising from the case-law
77
78
found that the limitation on the rights of the defence had been sufficiently
counterbalanced where evidence which was relevant to the issues at trial,
but on which the prosecution did not intend to rely, was examined ex parte
by the trial judge, who decided that it should not be disclosed because the
public interest in keeping it secret outweighed the utility to the defence of
disclosure. In finding that there had been no violation of Article 6, the Court
considered it significant that it was the trial judge, with full knowledge of
the issues in the trial, who carried out the balancing exercise and that steps
had been taken to ensure that the defence were kept informed and permitted
to make submissions and participate in the decision-making process as far
as was possible without disclosing the material which the prosecution
sought to keep secret (ibid., 55-56). In contrast, in Edwards and Lewis v.
the United Kingdom ([GC], nos. 39647/98 and 40461/98, 46-48, ECHR
2004-X), the Court found that an ex parte procedure before the trial judge
was not sufficient to secure a fair trial where the undisclosed material
related, or may have related, to an issue of fact which formed part of the
prosecution case, which the trial judge, rather than the jury, had to
determine and which might have been of decisive importance to the
outcome of the applicants trials.
207. In a number of other cases where the competing public interest
entailed restrictions on the rights of the defendant in relation to adverse
evidence, relied on by the prosecutor, the Court has assessed the extent to
which counterbalancing measures can remedy the lack of a full adversarial
procedure. For example, in Luc v. Italy (no. 33354/96, 40, ECHR
2001-II), it held that it would not necessarily be incompatible with Article 6
1 for the prosecution to refer at trial to depositions made during the
investigative stage, in particular where a witness refused to repeat his
deposition in public owing to fears for his safety, if the defendant had been
given an adequate and proper opportunity to challenge the depositions,
either when made or at a later stage. It emphasised, however, that where a
conviction was based solely or to a decisive degree on depositions that had
been made by a person whom the accused had had no opportunity to
examine or to have examined, whether during the investigation or at the
trial, the rights of the defence would be restricted to an extent incompatible
with the guarantees provided by Article 6.
208. Similarly, in Doorson (cited above, 68-76), the Court found that
there was no breach of Article 6 where the identity of certain witnesses was
concealed from the defendant, on the ground that they feared reprisals. The
fact that the defence counsel, in the absence of the defendant, was able to
put questions to the anonymous witnesses at the appeal stage and to attempt
to cast doubt on their reliability and that the Court of Appeal stated in its
judgment that it had treated the evidence of the anonymous witnesses with
caution was sufficient to counterbalance the disadvantage caused to the
defence. The Court emphasised that a conviction should not be based either
79
80
... attaches significance to the fact that, as the interveners pointed out in connection
with Article 13, ... in Canada a more effective form of judicial control has been
developed in cases of this type. This example illustrates that there are techniques
which can be employed which both accommodate legitimate security concerns about
the nature and sources of intelligence information and yet accord the individual a
substantial measure of procedural justice.
211. In Tinnelly & Sons Ltd and Others and McElduff and Others v. the
United Kingdom (10 July 1998, 78, Reports 1998-IV) and in Al-Nashif v.
Bulgaria (no. 50963/99, 93-97 and 137, 20 June 2002), the Court made
reference to its comments in Chahal about the special-advocate procedure
but without expressing any opinion as to whether such a procedure would
be in conformity with the Convention rights at issue.
(b) Application to the facts of the present case
212. Before the domestic courts, there were two aspects to the
applicants challenge to the lawfulness of their detention. Firstly, they
brought proceedings under section 30 of the 2001 Act to contest the validity
of the derogation under Article 15 of the Convention and thus the
compatibility with the Convention of the entire detention scheme. Secondly,
each applicant also brought an appeal under section 25 of the 2001 Act,
contending that the detention was unlawful under domestic law because
there were no reasonable grounds for a belief that his presence in the United
Kingdom was a risk to national security or for a suspicion that he was a
terrorist.
213. The Court does not consider it necessary to reach a separate finding
under Article 5 4 in connection with the applicants complaints that the
House of Lords was unable to make a binding order for their release, since it
has already found a violation of Article 5 1 arising from the provisions of
domestic law.
214. The applicants second ground of complaint under Article 5 4
concerns the fairness of the procedure before SIAC under section 25 of the
2001 Act to determine whether the Secretary of State was reasonable in
believing each applicants presence in the United Kingdom to be a risk to
national security and in suspecting him of being a terrorist. This is a
separate and distinct question, which cannot be said to be absorbed in the
finding of a violation of Article 5 1, and which the Court must therefore
examine.
215. The Court reiterates that although the judges sitting as SIAC were
able to consider both the open and closed material, neither the
applicants nor their legal advisers could see the closed material. Instead, the
closed material was disclosed to one or more special advocates, appointed
by the solicitor-general to act on behalf of each applicant. During the closed
sessions before SIAC, the special advocate could make submissions on
behalf of the applicant, both as regards procedural matters, such as the need
81
for further disclosure, and as to the substance of the case. However, from
the point at which the special advocate first had sight of the closed material,
he was not permitted to have any further contact with the applicant and his
representatives, save with the permission of SIAC. In respect of each appeal
against certification, SIAC issued both an open and a closed judgment.
216. The Court takes as its starting point that, as the national courts
found and it has accepted, during the period of the applicants detention the
activities and aims of the al-Qaeda network had given rise to a public
emergency threatening the life of the nation. It must therefore be borne in
mind that at the relevant time there was considered to be an urgent need to
protect the population of the United Kingdom from terrorist attack and,
although the United Kingdom did not derogate from Article 5 4, a strong
public interest in obtaining information about al-Qaeda and its associates
and in maintaining the secrecy of the sources of such information (see also,
in this connection, Fox, Campbell and Hartley, cited above, 39).
217. Balanced against these important public interests, however, was the
applicants right under Article 5 4 to procedural fairness. Although the
Court has found that, with the exception of the second and fourth applicants,
the applicants detention did not fall within any of the categories listed in
sub-paragraphs (a) to (f) of Article 5 1, it considers that the case-law
relating to judicial control over detention on remand is relevant, since in
such cases also the reasonableness of the suspicion against the detained
person is a sine qua non (see paragraph 204 above). Moreover, in the
circumstances of the present case, and in view of the dramatic impact of the
lengthy and what appeared at that time to be indefinite deprivation of
liberty on the applicants fundamental rights, Article 5 4 must import
substantially the same fair-trial guarantees as Article 6 1 in its criminal
aspect (see Garcia Alva v. Germany, no. 23541/94, 39, 13 February 2001,
and Chahal, cited above, 130-31).
218. Against this background, it was essential that as much information
about the allegations and evidence against each applicant was disclosed as
was possible without compromising national security or the safety of others.
Where full disclosure was not possible, Article 5 4 required that the
difficulties this caused were counterbalanced in such a way that each
applicant still had the possibility effectively to challenge the allegations
against him.
219. The Court considers that SIAC, which was a fully independent
court (see paragraph 91 above) and which could examine all the relevant
evidence, both closed and open, was best placed to ensure that no material
was unnecessarily withheld from the detainee. In this connection, the special
advocate could provide an important, additional safeguard through
questioning the States witnesses on the need for secrecy and through
making submissions to the judge regarding the case for additional
disclosure. On the material before it, the Court has no basis to find that
82
83
223. The principal allegations against the first and tenth applicants were
that they had been involved in fund-raising for terrorist groups linked to
al-Qaeda. In the first applicants case there was open evidence of large sums
of money moving through his bank account and in respect of the tenth
applicant there was open evidence that he had been involved in raising
money through fraud. However, in each case the evidence which allegedly
provided the link between the money raised and terrorism was not disclosed
to either applicant. In these circumstances, the Court does not consider that
these applicants were in a position effectively to challenge the allegations
against them. There has therefore been a violation of Article 5 4 in respect
of the first and tenth applicants.
224. The open allegations in respect of the third and fifth applicants
were of a general nature, principally that they were members of named
extremist Islamist groups linked to al-Qaeda. SIAC observed in its
judgments dismissing each of these applicants appeals that the open
evidence was insubstantial and that the evidence on which it relied against
them was largely to be found in the closed material. Again, the Court does
not consider that these applicants were in a position effectively to challenge
the allegations against them. There has therefore been a violation of
Article 5 4 in respect of the third and fifth applicants.
V. ALLEGED VIOLATION OF ARTICLE 5 1 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 13
225. The applicants argued in the alternative that the matters complained
of in relation to Article 5 4 also gave rise to a violation of Article 13. In
the light of its findings above, the Court does not consider it necessary to
examine these complaints separately.
VI. ALLEGED VIOLATION
CONVENTION
OF
ARTICLE
OF
THE
84
231. The applicants contended that Article 6 was the lex specialis of the
fair-trial guarantee. The regime under consideration represented the most
serious form of executive measure against terrorist suspects adopted within
the member States of the Council of Europe in the post-2001 period. It was
adopted to enable the United Kingdom to take proceedings against
individuals on the basis of reasonable suspicion alone, deriving from
evidence which could not be deployed in the ordinary courts. That alone
85
86
Greece, 29 May 1997, Reports 1997-III, where the applicants were awarded
the equivalent of GBP 17,890 and GBP 16,330 respectively in relation to
periods of thirteen and twelve months imprisonment for refusing to
perform military service).
236. The first applicant claimed compensation for his loss of liberty
between 19 December 2001 and 11 March 2005, a period of three years and
eighty-three days, and the consequent mental suffering, including mental
illness. He submitted that the award should in addition take account of the
suffering experienced by his wife and family as a result of the separation
and the negative publicity. He proposed an award of GBP 234,000 to cover
non-pecuniary damage. In addition, he claimed approximately GBP 7,500 in
pecuniary damage to cover the costs of his familys visits to him in
detention and other expenses.
237. The third applicant claimed compensation for his loss of liberty
between 19 December 2001 and 11 March 2005 and the consequent mental
suffering, including mental illness, together with the distress caused to his
wife and children. He proposed a figure of GBP 230,000 for non-pecuniary
damage, together with pecuniary damage of GBP 200 travel costs, incurred
by his wife, and a sum to cover his lost opportunity to establish himself in
business in the United Kingdom.
238. The fifth applicant claimed compensation for his detention between
19 December 2001 and 22 April 2004, his subsequent house arrest until
11 March 2005 and the consequent mental suffering, including mental
illness, together with the distress caused to his wife and children. He
proposed a figure of GBP 240,000 for non-pecuniary damage, together with
pecuniary damage of GBP 5,500, including travel and child-minding costs
incurred by his wife and money sent by her to the applicant in prison.
239. The sixth applicant claimed compensation for his detention
between 19 December 2001 and 11 March 2005 and the consequent mental
suffering, together with the distress caused to his wife and children. He
proposed a figure of GBP 217,000 for non-pecuniary damage, together with
pecuniary damage of GBP 51,410, including his loss of earnings as a selfemployed courier and travel costs incurred by his wife.
240. The seventh applicant claimed compensation for his detention
between 9 February 2002 and 11 March 2005 and the consequent mental
suffering, including mental illness. He proposed a figure of GBP 197,000
for non-pecuniary damage. He did not make any claim in respect of
pecuniary damage.
241. The eighth applicant claimed compensation for his loss of liberty
between 23 October 2002 and 11 March 2005 and the consequent mental
suffering, together with the distress caused to his wife and children. He
proposed a figure of GBP 170,000 for non-pecuniary damage, together with
pecuniary damage of GBP 4,570, including money sent to him in prison by
his wife and her costs of moving house to avoid unwanted media attention.
87
242. The ninth applicant claimed compensation for his loss of liberty
between 22 April 2002 and 11 March 2005, and the consequent mental
suffering, including mental illness, together with the distress caused to his
wife and children. He proposed a figure of GBP 215,000 for non-pecuniary
damage, together with pecuniary damage of GBP 7,725, including money
he had to borrow to assist his wife with household expenses, money sent to
him in prison by his wife and her travel expenses to visit him. He also asked
for a sum to cover his lost opportunity to establish himself in business in the
United Kingdom.
243. The tenth applicant claimed compensation for his loss of liberty
between 14 January 2003 and 11 March 2005 and the consequent mental
suffering, including mental illness. He proposed a figure of GBP 144,000
for non-pecuniary damage, together with pecuniary damage of GBP 2,751,
including the loss of a weekly payment of GBP 37 he was receiving from
the National Asylum Support Service prior to his detention and the cost of
telephone calls to his legal representatives.
244. The eleventh applicant claimed compensation for his loss of liberty
between 2 October 2003 and 11 March 2005 and the consequent mental
suffering. He proposed a figure of GBP 95,000 for non-pecuniary damage
but did not claim any pecuniary damage.
2. The Governments submissions
245. The Government, relying on the Courts judgment in McCann and
Others v. the United Kingdom (27 September 1995, 219, Series A
no. 324), contended that, as a matter of principle, the applicants were not
entitled to receive any form of financial compensation because they were
properly suspected, on objective and reasonable grounds, of involvement in
terrorism and had failed to displace that suspicion.
246. The Government pointed out that Part 4 of the 2001 Act was passed
and the derogation made in good faith, in an attempt to deal with what was
perceived to be an extremely serious situation amounting to a public
emergency threatening the life of the nation. The core problem with the
detention scheme under the 2001 Act, as identified by SIAC and the House
of Lords, was that it did not apply to United Kingdom as well as foreign
nationals. Following the House of Lords judgment, urgent consideration
was given to the question what should be done with the applicants in the
light of the public emergency and it was decided that a system of control
orders should be put in place. Against this background, it could not be
suggested that the Government had acted cynically or in flagrant disregard
of the individuals rights.
247. In addition, the Government submitted that no just satisfaction
should be awarded in respect of any procedural violation found by the Court
(for example, under Article 5 4 or 5), since it was not possible to
speculate what would have happened had the breach not occurred (see
88
Kingsley v. the United Kingdom [GC], no. 35605/97, ECHR 2002-IV, and
Hood v. the United Kingdom [GC], no. 27267/95, ECHR 1999-I).
248. In the event that the Court did decide to make a monetary award, it
should examine carefully in respect of each head of claim whether there was
sufficient supporting evidence, whether the claim was sufficiently closely
connected to the violation and whether the claim was reasonable as to
quantum.
3. The Courts assessment
249. The Court reiterates, firstly, that it has not found a violation of
Article 3 in the present case. It follows that it cannot make any award in
respect of mental suffering, including mental illness, allegedly arising from
the conditions of detention or the open-ended nature of the detention
scheme in Part 4 of the 2001 Act.
250. It has, however, found violations of Article 5 1 and 5 in respect
of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh
applicants and a violation of Article 5 4 in respect of the first, third, fifth
and tenth applicants. In accordance with Article 41, it could, therefore,
award these applicants monetary compensation, if it considered such an
award to be necessary. The Court has a wide discretion to determine when
an award of damages should be made, and frequently holds that the finding
of a violation is sufficient satisfaction without any further monetary award
(see, among many examples, Nikolova v. Bulgaria [GC], no. 31195/96,
76, ECHR 1999-II). In exercising its discretion the Court will have regard
to all the circumstances of the case, including the nature of the violations
found, as well as any special circumstances pertaining to the context of the
case.
251. The Court reiterates that in the McCann and Others judgment (cited
above, 219), it declined to make any award in respect of pecuniary or nonpecuniary damage arising from the violation of Article 2 of the Convention,
having regard to the fact that the three terrorist suspects who were killed had
been intending to plant a bomb in Gibraltar. It considers that the present
case is distinguishable, since it has not been established that any of the
applicants has engaged, or attempted to engage, in any act of terrorist
violence.
252. The decision whether to award monetary compensation in this case
and, if so, the amount of any such award, must take into account a number
of factors. The applicants were detained for long periods, in breach of
Article 5 1, and the Court has, in the past, awarded large sums in just
satisfaction in respect of unlawful detention (see, for example, Assanidze v.
Georgia [GC], no. 71503/01, ECHR 2004-II, or the cases cited by the
applicants in paragraph 235 above). The present case is, however, very
different. In the aftermath of the al-Qaeda attacks on the United States of
America of 11 September 2001, in a situation which the domestic courts and
89
this Court have accepted was a public emergency threatening the life of the
nation, the Government were under an obligation to protect the population
of the United Kingdom from terrorist violence. The detention scheme in
Part 4 of the 2001 Act was devised in good faith, as an attempt to reconcile
the need to prevent the commission of acts of terrorism with the obligation
under Article 3 of the Convention not to remove or deport any person to a
country where he could face a real risk of ill-treatment (see paragraph 166
above). Although the Court, like the House of Lords, has found that the
derogating measures were disproportionate, the core part of that finding was
that the legislation was discriminatory in targeting non-nationals only.
Moreover, following the House of Lords judgment, the detention scheme
under the 2001 Act was replaced by a system of control orders under the
Prevention of Terrorism Act 2005. All the applicants in respect of whom the
Court has found a violation of Article 5 1 became, immediately upon
release in March 2005, the subject of control orders. It cannot therefore be
assumed that, even if the violations in the present case had not occurred, the
applicants would not have been subjected to some restriction on their
liberty.
253. Against this background, the Court finds that the circumstances
justify the making of an award substantially lower than that which it has had
occasion to make in other cases of unlawful detention. It awards 3,900 euros
(EUR) to the first, third and sixth applicants; EUR 3,400 to the fifth and
ninth applicants; EUR 3,800 to the seventh applicant; EUR 2,800 to the
eighth applicant; EUR 2,500 to the tenth applicant; and EUR 1,700 to the
eleventh applicant, together with any tax that may be chargeable.
B. Costs and expenses
254. The applicants made no claim for costs in respect of the domestic
proceedings, since these had been recovered as a result of the order made by
the House of Lords. Their total claim for the costs of the proceedings before
the Court totalled GBP 144,752.64, inclusive of value-added tax (VAT).
This included 599 hours worked by solicitors at GBP 70 per hour plus VAT,
342.5 hours worked by counsel at GBP 150 per hour plus VAT and
85 hours worked by senior counsel at GBP 200 per hour plus VAT in
preparing the application, observations and just satisfaction claim before the
Chamber and Grand Chamber, together with disbursements such as experts
reports and the costs of the hearing before the Grand Chamber. They
submitted that it had been necessary to instruct a number of different
counsel, with different areas of specialism, given the range of issues to be
addressed and the evidence involved, concerning events which took place
over a ten-year period.
255. The Government submitted that the claim was excessive. In
particular, the number of hours spent by solicitors and counsel in preparing
90
the case could not be justified, especially since each of the applicants had
been represented throughout the domestic proceedings during which
detailed instructions must have been taken and consideration given to
virtually all the issues arising in the application to the Court. The hourly
rates charged by counsel were, in addition, excessive.
256. The Court reiterates that an applicant is entitled to be reimbursed
those costs actually and necessarily incurred to prevent or redress a breach
of the Convention, to the extent that such costs are reasonable as to quantum
(see Kingsley, cited above, 49). While it accepts that the number of
applicants must, inevitably, have necessitated additional work on the part of
their representatives, it notes that most of the individualised material filed
with the Court dealt with the applicants complaints under Article 3 of the
Convention and their claims for just satisfaction arising out of those
complaints, which the Court has rejected. In addition, it accepts the
Governments argument that a number of the issues, particularly those
relating to the derogation under Article 15 of the Convention, had already
been aired before the national courts, which should have reduced the time
needed for the preparation of this part of the case. Against this background,
it considers that the applicants should be awarded a total of EUR 60,000 in
respect of costs and expenses, together with any tax that may be chargeable
to the applicants.
C. Default interest
257. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
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Michael OBoyle
Deputy Registrar
Jean-Paul Costa
President